UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 21, 2022
(Exact name of Registrant as Specified in Its Charter)
| Delaware | 001-35375 | 42-1733483 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 699 Eighth Street San Francisco, CA 94103 |
94103 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (855) 449-9642
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
| Class A common stock | ZNGA | Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
On January 9, 2022, Zynga Inc. (“Zynga”) entered into an Agreement and Plan of Merger (as amended, the “Merger Agreement”) with Take-Two Interactive Software, Inc. (“Take-Two”), Zebra MS I, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Take-Two (“Merger Sub I”), and Zebra MS II, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Take-Two (“Merger Sub II”).
Pursuant to the Merger Agreement, following the satisfaction or waiver of each of the applicable conditions set forth in the Merger Agreement, Merger Sub I merged with and into Zynga (the “Merger”), with Zynga surviving as a wholly-owned subsidiary of Take-Two, and following the Merger, Zynga merged with and into Merger Sub II (the “Subsequent Merger” and together with the Merger, the “Combination”) with Merger Sub II surviving as a wholly-owned subsidiary of Take-Two. The Combination was consummated on May 23, 2022.
| Item 1.01 | Entry into a Material Definitive Agreement. |
Supplemental Indentures
On May 23, 2022, Zynga, Take-Two, Merger Sub II and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association) (the “Trustee”) entered into (i) the First Supplemental Indenture (the “2024 Supplemental Indenture”) to the Indenture, dated as of June 14, 2019 (the “2024 Indenture”), between Zynga and the Trustee, relating to Zynga’s 0.25% Convertible Senior Notes due 2024 (the “2024 Notes”), and (ii) the First Supplemental Indenture (the “2026 Supplemental Indenture” and, together with the 2024 Supplemental Indenture, the “Supplemental Indentures”) to the Indenture, dated as of December 17, 2020 (the “2026 Indenture” and, together with the 2024 Indenture, the “Indentures”), between Zynga and the Trustee, relating to Zynga’s 0% Convertible Senior Notes due 2026 (the “2026 Notes” and, together with the 2024 Notes, the “Notes”). As of the date hereof, approximately $690.0 million aggregate principal amount of the 2024 Notes are outstanding and approximately $874.5 million aggregate principal amount of the 2026 Notes are outstanding.
Each Supplemental Indenture provides, among other things, that, from and after the Effective Time (as defined below), (a) Merger Sub II, as the successor company to Zynga following the consummation of the Combination, shall assume all of Zynga’s rights and obligations under the Indentures, (b) the right of holders of the Notes to convert each $1,000 principal amount of such Notes into shares of Zynga Common Stock shall be changed into a right to convert such principal amount of such Notes into the Reference Property (as defined in the applicable Supplemental Indenture) and (c) that Take-Two shall guarantee Merger Sub II’s, as the successor company to Zynga, obligations under the Indentures and the Notes as provided in the applicable Supplemental Indenture. Reference Property is defined in each Supplemental Indenture as 0.0406 shares of Take-Two Common Stock and $3.50 in cash, without interest, plus cash in lieu of any fractional shares of Take-Two Common Stock.
The consummation of the Combination constitutes a Fundamental Change, a Make-Whole Fundamental Change and a Share Exchange Event (each as defined in the Indentures) under the Indentures. The effective date of the Fundamental Change, Make-Whole Fundamental Change and Share Exchange Event in respect of the Notes is May 23, 2022 (the “Notes Effective Date”), the date of the consummation of the Combination.
As a result of the Fundamental Change, each holder of Notes will have the right to require the Company to repurchase its Notes, pursuant to the terms and procedures set forth in the applicable Indenture, for a cash repurchase price equal to the Fundamental Change Repurchase Price (as defined in the applicable Indenture). In addition, as a result of the Fundamental Change, Make-Whole Fundamental Change and Share Exchange Event, holders of the Notes will have a right to convert their Notes for Reference Property commencing on the Notes Effective Date, subject to the terms of the Indentures.
The foregoing description of the Supplemental Indentures does not purport to be complete and is qualified in its entirety by reference to the full text of the applicable Supplemental Indenture, copies of which are filed as Exhibit 4.1 and Exhibit 4.2 to this Current Report on Form 8-K and are incorporated by reference.
| Item 1.02 | Termination of a Material Definitive Agreement. |
Termination of the Credit Agreement
On May 23, 2022, in connection with the consummation of the Combination, Zynga terminated and repaid in full all outstanding obligations due under the Credit Agreement, dated as of December 11, 2020, by and among Zynga, as borrower, certain financial institutions, as lenders, and Bank of America, N.A., as administrative agent for such lenders, as amended by the First Amendment dated as of May 28, 2021 to the Credit Agreement, dated as of December 11, 2020, by and among Zynga Inc., as borrower, certain financial institutions, as lenders, and Bank of America, N.A., as administrative agent for such lenders. In connection with the termination and repayment in full of all outstanding obligations under Zynga’s Credit Agreement, all related liens and security interests securing the Credit Agreement were irrevocably terminated and released.
Termination of Capped Call Transactions
On June 11, 2019 and June 13, 2019, in connection with the issuance of the 2024 Notes, and on December 14, 2020 and December 15, 2020, in connection with the issuance of the 2026 Notes, Zynga entered into capped call transactions (the “Capped Call Transactions”) with certain financial institutions (each a “Capped Call Counterparty” and, collectively, the “Capped Call Counterparties”).
In connection with the Merger, Zynga entered into a termination agreement with each Capped Call Counterparty pursuant to which the Capped Call Transactions with such Capped Call Counterparty will terminate in exchange for a cash payment from such Capped Call Counterparty.
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
On May 23, 2022, pursuant to the terms of the Merger Agreement, the Combination was consummated. At the effective time of the Merger (the “Effective Time”), each issued and outstanding share of Zynga’s Class A Common Stock, par value $0.00000625 per share (“Zynga Common Stock”) (other than dissenting shares or treasury shares) was canceled and extinguished and automatically converted into the right to receive $3.50 in cash, without interest, and 0.0406 shares of Take-Two’s common stock, par value $0.01 per share (“Take-Two Common Stock”).
Additionally, each (i) issued and outstanding option to purchase Zynga Common Stock was assumed by Take-Two and automatically converted into options to purchase 0.0702 shares of Take-Two Common Stock (the “Converted Options”), (ii) issued and outstanding restricted stock unit covering Zynga Common Stock was assumed by Take-Two and automatically converted into a Take-Two restricted stock unit award with respect to 0.0702 shares of Take-Two Common Stock (the “Converted RSUs”), and (iii) issued and outstanding performance stock unit award covering Zynga Common Stock was assumed by Take-Two and automatically converted into a Take-Two restricted stock unit award (which may continue to vest based on certain performance conditions) with respect to 0.0702 shares of Take-Two Common Stock (the “Converted PSUs” and together with the Converted Options and Converted RSUs, the “Converted Awards”). Following the Effective Time, the Converted Awards will vest based on continued service and will continue to be governed by substantially the same terms and conditions as were applicable to the corresponding Zynga equity awards prior to the Effective Time.
The description of the Merger does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which was filed as Exhibit 2.1 to Zynga’s Current Report on Form 8-K filed on January 10, 2022, and is incorporated by reference.
| Item 2.04. | Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement. |
The information set forth in Item 1.01 and of this Current Report on Form 8-K is incorporated by reference.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
On May 23, 2022, Zynga notified The Nasdaq Stock Market (the “NASDAQ”) of the consummation of the Merger. Zynga requested that the NASDAQ delist the Zynga Common Stock on May 23, 2022. Trading of Zynga Common Stock on the Nasdaq Global Select Market was suspended prior to the opening of the Nasdaq Global Select Market on May 23, 2022. Zynga also requested that the NASDAQ file a notification of removal from listing and registration on Form 25 with the Securities and Exchange Commission (the “SEC”) to effect the delisting of Zynga Common Stock from the Nasdaq Global Select Market and the deregistration of Zynga’s Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Zynga intends to file with the SEC a Form 15 requesting the termination of registration of the Zynga Common Stock under Section 12(g) of the Exchange Act and the suspension of reporting obligations under Section 13 and Section 15(d) of the Exchange Act.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information set forth in Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference.
| Item 5.01 | Change in Control of Registrant. |
As a result of the consummation of the Merger, a change in control of Zynga occurred. Following the consummation of the Merger, Zynga became a wholly-owned subsidiary of Take-Two.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Bernard Kim Transition
As previously announced, on May 2, 2022, Bernard Kim resigned as President of Publishing of Zynga, effective as of May 30, 2022, and is expected to remain an employee of Zynga through May 30, 2022 (such time period, the “Transition Period”), while his duties are transitioned to other members of Zynga’s management team.
Zynga and Mr. Kim entered into a Transition Agreement and Release (the “Agreement”) dated May 21, 2022. Under the Agreement, Mr. Kim will continue to receive his preexisting regular compensation during the Transition Period, including base salary and participation in Zynga’s standard benefit plans. Mr. Kim also agreed to forfeit his outstanding equity awards that were not vested as of April 30, 2022; provided, however, that if (i) Mr. Kim signs and does not revoke the Agreement, (ii) the transactions contemplated by the Merger Agreement, are consummated on or before May 29, 2022, and (iii) Mr. Kim continues to serve as an employee of Zynga and comply with his obligations during the Transition Period through May 30, 2022, then Mr. Kim will receive vesting of a number of shares subject to Mr. Kim’s outstanding equity awards that are scheduled to vest after May 30, 2022, with the number of such shares that vest having a value of $3 million. Such value will be based on the closing price per share of Take-Two Common Stock on May 27, 2022. No additional accelerated equity vesting or severance is to be provided. Mr. Kim will provide Zynga with a release of claims in favor of Zynga and its affiliates and successors.
Zynga would like to thank Mr. Kim for his years of service and wish him success in his future endeavors.
Director Appointments and Resignations
On May 23, 2022, and as a result of the consummation of the Subsequent Merger, Daniel Emerson and Linda Zabriskie became the directors of Zynga. The following persons, who were directors of Zynga prior to the effective time of the Subsequent Merger (the “Subsequent Effective Time”), resigned and are no longer directors of Zynga: Mark Pincus, Carol G. Mills, Frank Gibeau, Janice M. Roberts, Regina E. Dugan, Ellen F. Siminoff, William “Bing” Gordon, Noel Watson, Louis J. Lavigne, Jr.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
Pursuant to the terms of the Merger Agreement, at the Subsequent Effective Time, the certificate of incorporation and bylaws of Zynga were amended and restated to read in their entirety as the certificate of incorporation and bylaws, respectively, of Merger Sub II as in effect immediately prior to the Subsequent Effective Time, except that Article I of the certificate of incorporation of Merger Sub II was amended to provide that “The name of the corporation is Zynga Inc.”. The amended and restated certificate of incorporation and the amended and restated bylaws of Zynga are filed as Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated by reference.
No Offer
This Current Report on Form 8-K does not constitute an offer to sell, or a solicitation of an offer to buy, any security and shall not constitute an offer, solicitation or sale in any jurisdiction in which such offering would be unlawful.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| ZYNGA INC. | ||||||
| Date: May 23, 2022 | By: | /s/ Phuong Phillips | ||||
| Phuong Phillips | ||||||
| Chief Legal Officer and Secretary | ||||||
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
ZYNGA INC.
FIRST: The name of the corporation is Zynga Inc. (the “Company”).
SECOND: The registered office of the Company in the State of Delaware is located at 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware 19801. The name of the registered agent of the Company at such address is The Corporation Trust Company.
THIRD: The purpose for which the Company is organized is to engage in any and all lawful acts and activity for which corporations may be organized under the General Corporation Law of the State of Delaware. The Company will have perpetual existence.
FOURTH: The total number of shares of stock that the Company shall have authority to issue is one hundred (100) shares, having a par value of $0.01 per share, designated Common Stock.
FIFTH: Directors of the Company need not be elected by written ballot unless the bylaws of the Company otherwise provide.
SIXTH: The directors of the Company shall have the power to adopt, amend, and repeal the bylaws of the Company.
SEVENTH: No contract or transaction between the Company and one or more of its directors, officers, or stockholders or between the Company and any person (as used herein “person” means other corporation, partnership, association, firm, trust, joint venture, political subdivision, or instrumentality) or other organization in which one or more of its directors, officers, or stockholders are directors, officers, or stockholders, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee that authorizes the contract or transaction, or solely because his, her, or their votes are counted for such purpose, if: (a) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the board of directors or the committee, and the board of directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (b) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Company as of the time it is authorized, approved, or ratified by the board of directors, a committee thereof, or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee that authorizes the contract or transaction.
EIGHTH: The Company shall indemnify any person who was, is, or is threatened to be made a party to a proceeding (as hereinafter defined) by reason of the fact that he or she (a) is or was a director or officer of the Company or (b) while a director or officer of the Company, is or was serving at the request of the Company as a director, officer, partner, venturer, proprietor, trustee, employee, agent, or similar function of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan, or other enterprise, to the fullest extent permitted under the General Corporation Law of the State of Delaware (“DGCL”), as the same exists or may hereafter be amended. Such right shall be a contract right and as such shall run to the benefit of any director or officer who is elected and accepts the position of director or officer of the Company or elects to continue to serve as a director or officer of the Company while this Article Eighth is in effect. Any repeal or amendment of this Article Eighth shall be prospective only and shall not limit the rights of any such director or officer or the obligations of the Company with respect to any claim arising from or related to the services of such director or officer in any of the foregoing capacities prior to any such repeal or amendment to this Article Eighth. Such right shall include the right to be paid by the Company expenses incurred in defending any such proceeding in advance of its final disposition to the maximum extent permitted under the DGCL, as the same exists or may hereafter be amended. If a claim for indemnification or advancement of expenses hereunder is not paid in full by the Company within sixty (60) days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim, and if successful in whole or in part, the claimant shall also be entitled to be paid the expenses of prosecuting such claim. It shall be a defense to any such action that such indemnification or advancement of costs of defense are not permitted under the DGCL, but the burden of proving such defense shall be on the Company. Neither the failure of the Company (including its board of directors or any committee thereof, independent legal counsel, or stockholders) to have made its determination prior to the commencement of such action that indemnification of, or advancement of costs of defense to, the claimant is permissible in the circumstances nor an actual determination by the Company (including its board of directors or any committee thereof, independent legal counsel, or stockholders) that such indemnification or advancement is not permissible shall be a defense to the action or create a presumption that such indemnification or advancement is not permissible. In the event of the death of any person having a right of indemnification under the foregoing provisions, such right shall inure to the benefit of his or her heirs, executors, administrators, and personal representatives. The rights conferred above shall not be exclusive of any other right that any person may have or hereafter acquire under any statute, bylaw, resolution of stockholders or directors, agreement, or otherwise.
The Company may additionally indemnify any employee or agent of the Company to the fullest extent permitted by law.
As used herein, the term “proceeding” means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such an action, suit, or proceeding, and any inquiry or investigation that could lead to such an action, suit, or proceeding.
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NINTH: A director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the Company or its stockholders, (b) for acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law, (c) under Section 174 of the General Corporation Law of the State of Delaware, or (d) for any transaction from which the director derived an improper personal benefit. Any repeal or amendment of this Article Ninth by the stockholders of the Company shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the Company arising from an act or omission occurring prior to the time of such repeal or amendment. In addition to the circumstances in which a director of the Company is not personally liable as set forth in the foregoing provisions of this Article Ninth, a director shall not be liable to the Company or its stockholders to such further extent as permitted by any law hereafter enacted, including without limitation any subsequent amendment to the DGCL.
TENTH: The Company expressly elects not to be governed by Section 203 of the DGCL.
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Exhibit 3.2
BY-LAWS
OF
ZEBRA MS II, INC.
(a Delaware corporation)
Effective as of January 4, 2022
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year at such date and time, within or without the State of Delaware, as the Board of Directors shall determine.
SECTION 2. Special Meetings. Special meetings of stockholders for the transaction of such business as may properly come before the meeting may be called by order of the Board of Directors or by stockholders holding together at least a majority of all the shares of the Corporation entitled to vote at the meeting, and shall be held at such date and time, within or without the State of Delaware, as may be specified by such order.
SECTION 3. Notice of Meeting. Written notice of all meetings of the stockholders shall be mailed or delivered to each stockholder not less that 10 nor more than 60 days prior to the meeting. Notice of any special meeting shall state in general terms the purpose of purposes for which the meeting is to be held.
SECTION 4. Stockholder Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders entitled to examine to stock ledger, the list required by this section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 5. Quorum. Except as otherwise provided by law or the Corporation’s Certificate of Incorporation, a quorum for the transaction of business at any meeting of stockholders shall consist of the holders of record of a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote at the meeting, present in person or by proxy. At all meeting of the stockholders at which a quorum is present, all matters,
except as otherwise provided by law or the Certificate of Incorporation, shall be decided by the vote of the holders of a majority of the shares entitled to vote thereat present in person or by proxy. If there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time, without further notice, until a quorum shall have been obtained. When a quorum is once present it is not broken by the subsequent withdrawal of any stockholder.
SECTION 6. Organization. Meetings of stockholders shall be presided over by the President, if any, or if none or in the President’s absence, a Vice-President, or, if none of the foregoing is present, by a chairperson to be chosen by the stockholders entitled to vote who are present in person or by proxy at the meeting, The Secretary of the Corporation, or in the Secretary’s absence an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the presiding officer of the meeting shall appoint any person present to act as secretary of the meeting.
SECTION 7. Voting; Proxies; Required Vote. (a) At each meeting of stockholders, every stockholder shall be entitled to vote in person or by proxy appointed by instrument in writing, subscribed by such stockholder or by such stockholder’s duly authorized attorney-in-fact (but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period), and, unless the Certificate of Incorporation provides otherwise, shall have one vote for each share of stock entitled to vote registered in the name of such stockholder on the books of the Corporation on the applicable record date fixed pursuant to these By-laws. At all elections of directors the voting may but need not be by ballot and a plurality of the votes cast thereby shall elect. Except as otherwise required by law or the Certificate of Incorporation, any other action shall be authorized by a majority of the votes cast.
(b) Any action required or permitted to be taken at any meeting of stockholders may, except as otherwise required by law or the Certificate of Incorporation, be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of record of the issued and outstanding capital stock of the Corporation having a majority of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and the writing or writings are filed with the permanent records of the Corporation. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
SECTION 8. Inspectors. The Board of Directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, and the validity and effect of proxies, and shall receive
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votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the results, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question or matter determined by such inspector or inspectors and execute a certificate of any fact found by such inspector or inspectors.
SECTION 9. Action Without a Meeting. Unless otherwise provided in the certificate of incorporation of the Corporation, any action required by the Delaware General Corporation Law to be taken at any annual or special meeting of the stockholders, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders (acting for themselves or through a proxy) of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which the holders of all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Every written consent of stockholders shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered in the manner required by this Section 9 to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each director shall be at least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware. The number of directors constituting the entire Board shall be three, or such other number as may be fixed from time to time by action of the stockholders or Board of Directors. The use of the phrase “entire Board” herein refers to the total number of directors which the Corporation would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier death, retirement, resignation, disqualification or removal.
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(c) Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided by law, a majority of the entire Board shall constitute a quorum. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting from time to time to another time and place without notice. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
SECTION 4. Places of Meetings. Meetings of the Board of Directors may be held at any place within or without the State of Delaware, as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of stockholders, the newly elected Board of Directors shall meet for the purpose of the election of officers and the transaction of such other business as may properly come before the meeting. Such meeting may be held without notice immediately after the annual meeting of stockholders at the same place at which such stockholder’s meeting is held.
SECTION 6. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places as the Board of Directors shall from time to time by resolution determine. Notice need not be given of regular meetings of the Board of Directors held at times and places fixed by resolution of the Board of Directors.
SECTION 7. Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the President, or by a majority of the directors then in office.
SECTION 8. Notice of Meetings. A notice of the place, date and time and the purpose or purposes of each meeting of the Board of Directors shall be given to each director by mailing the same at least two days before the special meeting, or by sending by electronic mail or telephoning the same or by delivering the same personally not later than the day before the day of the meeting.
SECTION 9. Organization. At all meeting of the Board of Directors, a chairperson chosen by the directors shall preside. The Secretary of the Corporation shall act as secretary at all meetings of the Board of Directors when present, and in the Secretary’s absence, the presiding officer may appoint any person to act as secretary of the meeting.
SECTION 10. Resignation. Any director may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation. Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares of stock outstanding and entitled to vote for the election of directors.
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SECTION 11. Vacancies. Unless otherwise provided in these By-laws, vacancies on the Board of Directors, whether caused by resignation, death, disqualification, removal, an increase in the authorized number of directors or otherwise, may be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director, or at a special meeting of the stockholders, by the holders of shares entitled to vote for the election of directors.
SECTION 12. Action Without a Meeting. Unless otherwise restricted by the certificate of incorporation of the Corporation or by these bylaws, any action required or permitted to be taken at a meeting of the board of directors, or any committee of the board of directors, may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by all the directors or all the committee members, as the case may be, entitled to vote with respect to the subject matter thereof, and such consent shall have the same force and effect as a vote of such directors or committee members, as the case may be, and may be stated as such in any certificate or document filed with the Secretary of State of the State of Delaware or in any certificate delivered to any person. Such consent or consents shall be filed with the minutes of proceedings of the board or committee, as the case may be.
ARTICLE III
Committees
SECTION 1. Appointment. From time to time the Board of Directors by a resolution adopted by a majority of the entire Board may appoint any committee or committees for any purpose or purposes, to the extent lawful, which shall have powers as shall be determined and specified by the Board of Directors in the resolution of appointment.
SECTION 2. Procedures, Quorum and Manner of Acting. Each committee shall fix its own rules of procedure, and shall meet where and as provided by such rules or by resolution of the Board of Directors. Except as otherwise provided by law, the presence of a majority of the then appointed members of a committee shall constitute a quorum for the transaction of business by that committee, and in every case where a quorum is present the affirmative vote of a majority of the members of the committee present shall be the act of the committee. Each committee shall keep minutes of its proceedings, and actions taken by a committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent. Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if all the members of the committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the committee.
SECTION 4. Term; Termination. In the event any person shall cease to be a director of the Corporation, such person shall simultaneously therewith cease to be a member of any committee appointed by the Board of Directors.
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ARTICLE IV
Officers
SECTION 1. Election and Qualifications. The Board of Directors shall elect the officers of the Corporation, which shall include a President and a Secretary, and may include, by election or appointment, one or more Vice-Presidents (any one or more of whom may be given an additional designation of rank or function), a Treasurer and such Assistant Secretaries, such Assistant Treasurers and such other officers as the Board may from time to time deem proper. Each officer shall have such powers and duties as may be prescribed by these By-laws and as may be assigned by the Board of Directors or the President. Any two or more offices may be held by the same person.
SECTION 2. Term of Office and Remuneration. The term of office of all officers shall be one year and until their respective successors have been elected and qualified, but any officer may be removed from office, either with or without cause, at any time by the Board of Directors. Any vacancy in any office arising from any cause may be filled for the unexpired portion of the term by the Board of Directors. The remuneration of all officers of the Corporation may be fixed by the Board of Directors or in such manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation. Any officer shall be subject to removal, with or without cause, at any time by vote of a majority of the entire Board.
SECTION 4. President. The President shall be the chief executive officer of the Corporation, and shall have such duties as customarily pertain to that office. The President shall have general management and supervision of the property, business and affairs of the Corporation and over its other officers; and may appoint and remove assistant officers and other agents and employees.
SECTION 5. Vice-President. In the absence of the President, or in the event of such officer’s death, disability or refusal to act, the Vice-President, or in the event there be more than one Vice-President, the Vice-Presidents in the order designated at the time of their selection, or in the absence of such designation, then in the order of their selection, shall perform the duties of President, and when so acting, shall have all the powers and be subject to all restrictions upon the President. Each Vice-President shall have such powers and discharge such duties as may be assigned from time to time by the President or by the Board of Directors.
SECTION 6. Treasurer. The Treasurer shall in general have all duties incident to the position of Treasurer and such other duties as may be assigned by the Board of Directors or the President.
SECTION 7. Secretary. The Secretary shall in general have all the duties incident to the office of Secretary and such other duties as may be assigned by the Board of Directors or the President.
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SECTION 8. Assistant Officers. Any assistant officer shall have such powers and duties of the officer such assistant officer assists as such officer or the Board of Directors shall from time to time prescribe.
ARTICLE V
Books and Records
SECTION 1. Location. The books and records of the Corporation may be kept at such place or places within or outside the State of Delaware as the Board of Directors or the respective officers in charge thereof may from time to time determine. The record books containing the names and addresses of all stockholders, the number and class of shares of stock held by each and the dates when they respectively became the owners of record thereof shall be kept by the Secretary as prescribed in the By-laws and by such officer or agent as shall be designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all other corporate notices may be delivered personally or mailed to each stockholder at the stockholder’s address as it appears on the records of the Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of Record. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth that action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by this chapter, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
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(c) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
ARTICLE VI
Certificates Representing Stock
SECTION 1. Certificate; Signatures. The shares of the Corporation shall be represented by certificates, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertified shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificates and upon request every holder of uncertified shares shall be entitled to have a certificate, signed by or in the name of the Corporation by the President or Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares registered in certificate form. Any and all signatures on any such certificate may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. The name of the holder of record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation.
SECTION 2. Transfers of Stock. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, shares of capital stock shall be transferable on the books of the Corporation only by the holder of record thereof in person, or by duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares, properly endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall not be required to, issue certificates for fractions of a share where necessary to effect authorized transactions, or the Corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or it may issue script in registered or bearer form over the manual or facsimile signature of an officer of the Corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a stockholder except as therein provided.
The Board of Directors shall have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the Corporation.
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SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation may issue a new certificate of stock in place of any certificate, theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Board of Directors may require the owner of any lost, stolen or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
ARTICLE VII
Dividends
Subject always to the provisions of law and the Certificate of Incorporation, the Board of Directors shall have full power to determine whether any, and, if any, what part of any, funds legally available for the payment of dividends shall be declared as dividends and paid to stockholders; the division of the whole or any part of such funds of the Corporation shall rest wholly within the lawful discretion of the Board of Directors, and it shall not be required at any time, against such discretion, to divide or pay any part of such funds among or to the stockholders as dividends or otherwise; and before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, thinks proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.
ARTICLE VIII
Ratification
Any transaction, questioned in any law suit on the ground of lack of authority, defective or irregular execution, adverse interest of director, officer or stockholder, non-disclosure, miscomputation, or the application of improper principles or practices of accounting, may be ratified before or after judgment, by the Board of Directors or by the stockholders, and if so ratified shall have the same force and effect as if the questioned transaction had been originally authorized. Such ratification shall be binding upon the Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.
ARTICLE IX
Corporate Seal
The corporate seal shall have inscribed thereon the name of the Corporation and the year of its incorporation, and shall be in such form and contain such other words and/or figures as the Board of Directors shall determine. The corporate seal may be used by printing, engraving, lithographing, stamping or otherwise making, placing or affixing, or causing to be printed, engraved, lithographed, stamped or otherwise made, placed or affixed, upon and paper or document, by any process whatsoever, an impression, facsimile or other reproduction of said corporate seal.
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ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board of Directors. Unless otherwise fixed by the Board of Directors, the fiscal year of the Corporation shall commence on October first of each year.
ARTICLE XI
Waiver of Notice
Whenever notice is required to be given by these By-laws or by the Certificate of Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE XII
Contracts, Instruments, Etc.
SECTION 1. Contracts. The officers of the Corporation are each generally authorized in the name and on behalf of the Corporation, to enter into or execute and deliver any and all deeds, bonds, mortgages, contracts and other obligations or instruments.
SECTION 2. Proxies; Powers of Attorney; Other Instruments. The officers of the Corporation or any other person designated by any of them shall each have the power and authority to execute and deliver proxies, powers of attorney and other instruments on behalf of the Corporation in connection with the rights and powers incident to the ownership of stock by the Corporation. The officers of the Corporation or any other person authorized by proxy or power of attorney executed and delivered by any of them on behalf of the Corporation may each attend and vote at any meeting of stockholders of any company in which the Corporation may hold stock, and may each exercise on behalf of the Corporation any and all of the rights and powers incident to the ownership of such stock at any such meeting, or otherwise as specified in the proxy or power of attorney so authorizing any such person. The Board of Directors, from time to time, may confer like powers upon any other person.
SECTION 3. Financial Reports. The Board of Directors may appoint the primary financial officer or other fiscal officer and/or the Secretary to cause to be prepared and
furnished to stockholders entitled thereto any special financial notice and/or financial statement, as the case may be, which may be required by any provision of law.
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ARTICLE XIII
Amendments
The Board of Directors shall have power to adopt, amend or repeal By-laws. By-laws adopted by the Board of Directors may be repealed or changed, and new By-law made, by the stockholders, and the stockholders may prescribe that any By-law made by them shall not be altered, amended or repealed by the Board of Directors.
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Exhibit 4.1
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (“Supplemental Indenture”), dated as of May 23, 2022, among Zynga Inc., a Delaware corporation (the “Company”), Zebra MS II, Inc. (the “Successor Company”), Take-Two Interactive Software, Inc., a Delaware corporation (“Take-Two”), and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of June 14, 2019 (the “Indenture”), pursuant to which the Company issued its 0.25% Convertible Senior Notes due 2024 (the “Notes”);
WHEREAS, on January 9, 2022, the Company, Take-Two, Zebra MS I, Inc., a Delaware corporation and wholly owned subsidiary of Take-Two (“Merger Sub 1”), and the Successor Company, entered into an Agreement and Plan of Merger (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of March 10, 2022, and the Second Amendment to the Agreement and Plan of Merger, dated as of May 4, 2022, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, Merger Sub 1 will merge with and into the Company with the Company continuing as the surviving corporation and as a wholly-owned subsidiary of Take-Two (the “First Merger”), and immediately following the First Merger, the Company will merge with and into the Successor Company with the Successor Company continuing as the surviving corporation and as a wholly-owned subsidiary of Take-Two (the “Second Merger”, and together with the First Merger, the “Combination”);
WHEREAS, at the effective time of the Combination (the “Effective Time”), each share of Class A common stock, par value $0.00000625 per share, of the Company (“Company Common Stock”), issued and outstanding immediately prior to the Effective Time (other than (i) shares of Company Common Stock owned or held in treasury and (ii) Company Common Stock with respect to which appraisal rights are properly exercised and not withdrawn under Delaware law) will be converted into the right to receive 0.0406 shares of common stock, $0.01 par value per share, of Take-Two (“Take-Two Common Stock,” and the shares received, the “Share Consideration”) and $3.50 in cash, without interest and less any withholding taxes (the “Cash Consideration,” and together with the Share Consideration, the “Merger Consideration”);
WHEREAS, Section 11.02 of the Indenture provides that the Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, to another Person unless, among other things, the resulting, surviving or transferee Person shall expressly assume by supplemental indenture all of the obligations of the Company under the Notes and the Indenture;
WHEREAS, as a result of the Combination, the separate existence of the Company will cease, and the Successor Company will continue as the surviving corporation, and pursuant to this Supplemental Indenture, the Successor Company will expressly assume all of the obligations of the Company under the Notes and the Indenture in accordance with Section 11.02 of the Indenture;
WHEREAS, the Combination constitutes a Share Exchange Event under Section 14.07(a)(ii) of the Indenture;
WHEREAS, Section 14.07(a) of the Indenture provides, among other things, that, upon the occurrence of a Share Exchange Event, the Company shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) of the Indenture providing that, at and after the effective time of such Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a Holder of a number of shares of Company Common Stock equal to the Conversion Rate immediately prior to such Share Exchange Event would have owned or been entitled to receive (the “Reference Property”) upon such Share Exchange Event; provided, however, that at and after the effective time of such Share Exchange Event (A) the Successor Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 of the Indenture and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with such Section 14.02 shall continue to be payable in cash, (II) any Company Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with such Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a Holder of that number of shares of Company Common Stock would have been entitled to receive in such Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property;
WHEREAS, Take-Two wishes to fully and unconditionally guarantee all of the obligations of the Successor Company under the Notes and the Indenture (the “Guarantee”);
WHEREAS, in accordance with Section 10.01(b) of the Indenture, the Company, the Successor Company and the Trustee may enter into this Supplemental Indenture without the consent of any Holder, to provide for the assumption by a Successor Company of the obligations of the Company under the Indenture pursuant to Article 11 of the Indenture;
WHEREAS, in accordance with Section 10.01(c) of the Indenture, the Company, the Successor Company and the Trustee may enter into this Supplemental Indenture without the consent of any Holder, to add guarantees with respect to the Notes;
WHEREAS, in accordance with Section 10.01(i) of the Indenture, the Company, the Successor Company and the Trustee may enter into this Supplemental Indenture without the consent of any Holder to provide that the Notes are convertible into Reference Property, subject to the provisions of Section 14.02 of the Indenture, and to make such related changes to the terms of the Notes to the extent expressly required by Section 14.07 of the Indenture;
WHEREAS, each of the Company and the Successor Company have, pursuant to Sections 10.05, 11.03, 14.07(b) and 17.05 of the Indenture, heretofore delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel; and
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WHEREAS, all conditions for the execution and delivery of this Supplemental Indenture have been complied with or have been done or performed.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto mutually covenant and agree for the equal and proportionate benefit of all Holders of the Notes as follows:
ARTICLE 1.
DEFINITIONS
Section 1.01. General. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.
Section 1.02. Unit of Reference Property. “Unit of Reference Property” shall mean 0.0406 shares of Take-Two Common Stock and $3.50 in cash, without interest, plus cash in lieu of any fractional shares of Take-Two Common Stock.
ARTICLE 2.
MODIFICATIONS TO INDENTURE
Section 2.01. Assumption. Pursuant to, and in compliance and in accordance with, Section 11.02 of the Indenture, the Successor Company hereby expressly and unconditionally assumes all of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Company.
Section 2.02. Successor Corporation Substituted. In accordance with Section 11.02 of the Indenture, upon the Effective Time of the Combination, the Successor Company shall succeed to, and shall be substituted for the Company under the Indenture and the Notes, with the same effect as if the Successor Company had been named in the Indenture as the party of the first part.
Section 2.03. Conversion Right. Pursuant to Section 14.07 of the Indenture, as a result of the Combination: (a) at and after the Effective Time, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the number of units of Reference Property equal to the Conversion Rate in effect immediately prior to the Effective Time; (b) at and after the Effective Time (i) the Successor Company shall continue to have the right to determine the Settlement Method applicable upon conversion of Notes in accordance with Section 14.02 of the Indenture and (ii)(A) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 of the Indenture shall continue to be payable in cash, (B) any shares of Company Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 of the Indenture shall instead be deliverable in units of Reference Property, and (C) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; (c) the definitions of “Scheduled Trading Day,” “Trading Day” and “Market Disruption Event” shall be determined by reference to Take-Two Common Stock; and (d) the provisions of the Indenture, as modified herein, including without limitation, (i) all references and provisions respecting the terms “Common Stock,” “Conversion Price,” “Conversion Rate,” and “Last Reported Sale Price” and (ii) the provisions of Article 14 of the Indenture shall continue to apply, mutatis mutandis, to the Holders’ right to convert each Note into Reference Property.
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Section 2.04. Anti-Dilution Adjustments. As and to the extent required by Section 14.07(a) of the Indenture, the Conversion Rate shall be subject to anti-dilution and other adjustments with respect to the portion of Reference Property constituting Take-Two Common Stock that shall be as nearly equivalent as is possible to the adjustments provided for in Article 14 of the Indenture.
Section 2.05. Repurchase of Notes at Option of Holders. References to the “Company” and to “Common Stock” in the definition of “Fundamental Change” in Section 1.01 of the Indenture shall instead be references to “Take-Two” and “Take-Two Common Stock,” respectively. Except as amended hereby, the purchase rights set forth in Article 15 of the Indenture shall continue to apply.
ARTICLE 3.
GUARANTEE
Section 3.01. Note Guarantee. Take-Two hereby fully, unconditionally and irrevocably guarantees on a senior unsecured basis, to each Holder of Notes and to the Trustee and their respective successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at the Maturity Date, by acceleration or otherwise, and all other monetary obligations of the Company under the Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to the Notes under the Indenture and the Notes (all such obligations set forth in clauses (a) and (b) above being hereinafter collectively called the “Guaranteed Obligations”; and the guarantee of the Guaranteed Obligations is hereinafter called the “Note Guarantee”). Take-Two further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Take-Two and that Take-Two will remain bound under this Supplemental Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
Take-Two waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Take-Two waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Take-Two hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company, Take-Two or any other Person under the Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any obligation of the Company under the Indenture or any Note, by operation of law or otherwise; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, the Notes or any other agreement; or (d) any change in the ownership of Take-Two.
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Take-Two further agrees that its Note Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
Take-Two further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
Take-Two also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees, including court costs) incurred by the Trustee or any Holder in enforcing any rights under this Section 3.01.
Section 3.02. Release of Guarantor. The Note Guarantee of Take-Two will be released with respect to the Notes under this Supplemental Indenture without any further action required on the part of the Trustee, the Paying Agent, the Conversion Agent or any Holder if the Company satisfies and discharges its obligations under the Notes in accordance with Article 3 of the Indenture.
ARTICLE 4.
ACCEPTANCE OF SUPPLEMENTAL INDENTURE
Section 4.01. Trustee. The Trustee makes no representation as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture. The recitals shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall be applicable in respect of this Supplemental Indenture as fully and with like force and effect as though fully set forth in full herein.
ARTICLE 5.
MISCELLANEOUS PROVISIONS
Section 5.01. Confirmation of Indenture. The Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
Section 5.02. Headings. The titles and headings of the articles and sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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Section 5.03. Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission and any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Supplemental Indenture (and to any document executed in connection with this Supplemental Indenture) shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (a) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”); (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
Section 5.04. Governing Law; Jurisdiction. THIS SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).
Each of the Company, the Successor Company and Take-Two irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Supplemental Indenture may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
Each of the Company, the Successor Company and Take-Two irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Supplemental Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
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Section 5.05. Severability. In the event any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 5.06. Waiver of Jury Trial. EACH OF THE COMPANY, THE SUCCESSOR COMPANY, TAKE-TWO AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| ZYNGA INC. | ||
| By: |
/s/ Gerard Griffin | |
| Name: Gerard Griffin | ||
| Title: Chief Financial Officer | ||
| ZEBRA MS II, INC. | ||
| By: |
/s/ Matthew Breitman | |
| Name: Matthew Breitman | ||
| Title: Vice President | ||
| TAKE-TWO INTERACTIVE SOFTWARE, INC. | ||
| By: |
/s/ Matthew Breitman | |
| Name: Matthew Breitman | ||
| Title: Senior Vice President & General Counsel Americas | ||
| COMPUTERSHARE TRUST COMPANY, N.A., AS TRUSTEE | ||
| By: |
/s/ Jill Melhus | |
| Name: Jill Melhus | ||
| Title: Assistant Vice President | ||
[Signature Page to First Supplemental Indenture – 2024 Notes]
Exhibit 4.2
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (“Supplemental Indenture”), dated as of May 23, 2022, among Zynga Inc., a Delaware corporation (the “Company”), Zebra MS II, Inc. (the “Successor Company”), Take-Two Interactive Software, Inc., a Delaware corporation (“Take-Two”), and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National Association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as of December 17, 2020 (the “Indenture”), pursuant to which the Company issued its 0% Convertible Senior Notes due 2026 (the “Notes”);
WHEREAS, on January 9, 2022, the Company, Take-Two, Zebra MS I, Inc., a Delaware corporation and wholly owned subsidiary of Take-Two (“Merger Sub 1”), and the Successor Company, entered into an Agreement and Plan of Merger (as amended by the First Amendment to the Agreement and Plan of Merger, dated as of March 10, 2022, and the Second Amendment to the Agreement and Plan of Merger, dated as of May 4, 2022, the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, Merger Sub 1 will merge with and into the Company with the Company continuing as the surviving corporation and as a wholly-owned subsidiary of Take-Two (the “First Merger”), and immediately following the First Merger, the Company will merge with and into the Successor Company with the Successor Company continuing as the surviving corporation and as a wholly-owned subsidiary of Take-Two (the “Second Merger”, and together with the First Merger, the “Combination”);
WHEREAS, at the effective time of the Combination (the “Effective Time”), each share of Class A common stock, par value $0.00000625 per share, of the Company (“Company Common Stock”), issued and outstanding immediately prior to the Effective Time (other than (i) shares of Company Common Stock owned or held in treasury and (ii) Company Common Stock with respect to which appraisal rights are properly exercised and not withdrawn under Delaware law) will be converted into the right to receive 0.0406 shares of common stock, $0.01 par value per share, of Take-Two (“Take-Two Common Stock,” and the shares received, the “Share Consideration”) and $3.50 in cash, without interest and less any withholding taxes (the “Cash Consideration,” and together with the Share Consideration, the “Merger Consideration”);
WHEREAS, Section 11.02 of the Indenture provides that the Company shall not consolidate with, merge with or into, or sell, convey, transfer or lease all or substantially all of the consolidated properties and assets of the Company and its Subsidiaries, taken as a whole, to another Person unless, among other things, the resulting, surviving or transferee Person shall expressly assume by supplemental indenture all of the obligations of the Company under the Notes and the Indenture;
WHEREAS, as a result of the Combination, the separate existence of the Company will cease, and the Successor Company will continue as the surviving corporation, and pursuant to this Supplemental Indenture, the Successor Company will expressly assume all of the obligations of the Company under the Notes and the Indenture in accordance with Section 11.02 of the Indenture;
WHEREAS, the Combination constitutes a Share Exchange Event under Section 14.07(a)(ii) of the Indenture;
WHEREAS, Section 14.07(a) of the Indenture provides, among other things, that, upon the occurrence of a Share Exchange Event, the Company shall execute with the Trustee a supplemental indenture permitted under Section 10.01(i) of the Indenture providing that, at and after the effective time of such Share Exchange Event, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a Holder of a number of shares of Company Common Stock equal to the Conversion Rate immediately prior to such Share Exchange Event would have owned or been entitled to receive (the “Reference Property”) upon such Share Exchange Event; provided, however, that at and after the effective time of such Share Exchange Event (A) the Successor Company shall continue to have the right to determine the form of consideration to be paid or delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 of the Indenture and (B) (I) any amount payable in cash upon conversion of the Notes in accordance with such Section 14.02 shall continue to be payable in cash, (II) any Company Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with such Section 14.02 shall instead be deliverable in the amount and type of Reference Property that a Holder of that number of shares of Company Common Stock would have been entitled to receive in such Share Exchange Event and (III) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property;
WHEREAS, Take-Two wishes to fully and unconditionally guarantee all of the obligations of the Successor Company under the Notes and the Indenture (the “Guarantee”);
WHEREAS, in accordance with Section 10.01(b) of the Indenture, the Company, the Successor Company and the Trustee may enter into this Supplemental Indenture without the consent of any Holder, to provide for the assumption by a Successor Company of the obligations of the Company under the Indenture pursuant to Article 11 of the Indenture;
WHEREAS, in accordance with Section 10.01(c) of the Indenture, the Company, the Successor Company and the Trustee may enter into this Supplemental Indenture without the consent of any Holder, to add guarantees with respect to the Notes;
WHEREAS, in accordance with Section 10.01(i) of the Indenture, the Company, the Successor Company and the Trustee may enter into this Supplemental Indenture without the consent of any Holder to provide that the Notes are convertible into Reference Property, subject to the provisions of Section 14.02 of the Indenture, and to make such related changes to the terms of the Notes to the extent expressly required by Section 14.07 of the Indenture;
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WHEREAS, each of the Company and the Successor Company have, pursuant to Sections 10.05, 11.03, 14.07(b) and 17.05 of the Indenture, heretofore delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel; and
WHEREAS, all conditions for the execution and delivery of this Supplemental Indenture have been complied with or have been done or performed.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto mutually covenant and agree for the equal and proportionate benefit of all Holders of the Notes as follows:
ARTICLE 1.
DEFINITIONS
Section 1.01. General. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.
Section 1.02. Unit of Reference Property. “Unit of Reference Property” shall mean 0.0406 shares of Take-Two Common Stock and $3.50 in cash, without interest, plus cash in lieu of any fractional shares of Take-Two Common Stock.
ARTICLE 2.
MODIFICATIONS TO INDENTURE
Section 2.01. Assumption. Pursuant to, and in compliance and in accordance with, Section 11.02 of the Indenture, the Successor Company hereby expressly and unconditionally assumes all of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Company.
Section 2.02. Successor Corporation Substituted. In accordance with Section 11.02 of the Indenture, upon the Effective Time of the Combination, the Successor Company shall succeed to, and shall be substituted for the Company under the Indenture and the Notes, with the same effect as if the Successor Company had been named in the Indenture as the party of the first part.
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Section 2.03. Conversion Right. Pursuant to Section 14.07 of the Indenture, as a result of the Combination: (a) at and after the Effective Time, the right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes into the number of units of Reference Property equal to the Conversion Rate in effect immediately prior to the Effective Time; (b) at and after the Effective Time (i) the Successor Company shall continue to have the right to determine the Settlement Method applicable upon conversion of Notes in accordance with Section 14.02 of the Indenture and (ii)(A) any amount payable in cash upon conversion of the Notes in accordance with Section 14.02 of the Indenture shall continue to be payable in cash, (B) any shares of Company Common Stock that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 of the Indenture shall instead be deliverable in units of Reference Property, and (C) the Daily VWAP shall be calculated based on the value of a Unit of Reference Property; (c) the definitions of “Scheduled Trading Day,” “Trading Day” and “Market Disruption Event” shall be determined by reference to Take-Two Common Stock; and (d) the provisions of the Indenture, as modified herein, including without limitation, (i) all references and provisions respecting the terms “Common Stock,” “Conversion Price,” “Conversion Rate,” and “Last Reported Sale Price” and (ii) the provisions of Article 14 of the Indenture shall continue to apply, mutatis mutandis, to the Holders’ right to convert each Note into Reference Property.
Section 2.04. Anti-Dilution Adjustments. As and to the extent required by Section 14.07(a) of the Indenture, the Conversion Rate shall be subject to anti-dilution and other adjustments with respect to the portion of Reference Property constituting Take-Two Common Stock that shall be as nearly equivalent as is possible to the adjustments provided for in Article 14 of the Indenture.
Section 2.05. Repurchase of Notes at Option of Holders. References to the “Company” and to “Common Stock” in the definition of “Fundamental Change” in Section 1.01 of the Indenture shall instead be references to “Take-Two” and “Take-Two Common Stock,” respectively. Except as amended hereby, the purchase rights set forth in Article 15 of the Indenture shall continue to apply.
ARTICLE 3.
GUARANTEE
Section 3.01. Note Guarantee. Take-Two hereby fully, unconditionally and irrevocably guarantees on a senior unsecured basis, to each Holder of Notes and to the Trustee and their respective successors and assigns (a) the full and punctual payment of principal of and interest on the Notes when due, whether at the Maturity Date, by acceleration or otherwise, and all other monetary obligations of the Company under the Indenture and the Notes and (b) the full and punctual performance within applicable grace periods of all other obligations of the Company with respect to the Notes under the Indenture and the Notes (all such obligations set forth in clauses (a) and (b) above being hereinafter collectively called the “Guaranteed Obligations”; and the guarantee of the Guaranteed Obligations is hereinafter called the “Note Guarantee”). Take-Two further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice or further assent from Take-Two and that Take-Two will remain bound under this Supplemental Indenture notwithstanding any extension or renewal of any Guaranteed Obligation.
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Take-Two waives presentation to, demand of, payment from and protest to the Company of any of the Guaranteed Obligations and also waives notice of protest for nonpayment. Take-Two waives notice of any default under the Notes or the Guaranteed Obligations. The obligations of Take-Two hereunder shall not be affected by (a) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right or remedy against the Company, Take-Two or any other Person under the Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any obligation of the Company under the Indenture or any Note, by operation of law or otherwise; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of the Indenture, the Notes or any other agreement; or (d) any change in the ownership of Take-Two.
Take-Two further agrees that its Note Guarantee herein constitutes a guarantee of payment, performance and compliance when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Guaranteed Obligations.
Take-Two further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any Guaranteed Obligation is rescinded or must otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of the Company or otherwise.
Take-Two also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees, including court costs) incurred by the Trustee or any Holder in enforcing any rights under this Section 3.01.
Section 3.02. Release of Guarantor. The Note Guarantee of Take-Two will be released with respect to the Notes under this Supplemental Indenture without any further action required on the part of the Trustee, the Paying Agent, the Conversion Agent or any Holder if the Company satisfies and discharges its obligations under the Notes in accordance with Article 3 of the Indenture.
ARTICLE 4.
ACCEPTANCE OF SUPPLEMENTAL INDENTURE
Section 4.01. Trustee The Trustee makes no representation as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture. The recitals shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall be applicable in respect of this Supplemental Indenture as fully and with like force and effect as though fully set forth in full herein.
ARTICLE 5.
MISCELLANEOUS PROVISIONS
Section 5.01. Confirmation of Indenture. The Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
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Section 5.02. Headings. The titles and headings of the articles and sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 5.03. Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission and any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes. This Supplemental Indenture (and to any document executed in connection with this Supplemental Indenture) shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (a) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”); (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute one and the same instrument. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
Section 5.04. Governing Law; Jurisdiction. THIS SUPPLEMENTAL INDENTURE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL INDENTURE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).
Each of the Company, the Successor Company and Take-Two irrevocably consents and agrees, for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Supplemental Indenture may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
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Each of the Company, the Successor Company and Take-Two irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in connection with this Supplemental Indenture brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.
Section 5.05. Severability. In the event any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.
Section 5.06. Waiver of Jury Trial. EACH OF THE COMPANY, THE SUCCESSOR COMPANY, TAKE-TWO AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| ZYNGA INC. | ||
| By: | /s/ Gerard Griffin | |
| Name: Gerard Griffin | ||
| Title: Chief Financial Officer | ||
| ZEBRA MS II, INC. | ||
| By: | /s/ Matthew Breitman | |
| Name: Matthew Breitman | ||
| Title: Vice President | ||
| TAKE-TWO INTERACTIVE SOFTWARE, INC. | ||
| By: | /s/ Matthew Breitman | |
| Name: Matthew Breitman | ||
| Title: Senior Vice President & General Counsel Americas | ||
| COMPUTERSHARE TRUST COMPANY, N.A., AS TRUSTEE | ||
| By: | /s/ Jill Melhus | |
| Name: Jill Melhus | ||
| Title: Assistant Vice President | ||
[Signature Page to First Supplemental Indenture – 2026 Notes]