The Merger Agreement

THE MERGER AGREEMENT

The following discussion summarizes certain material provisions of the merger agreement, a copy of which is attached as Annex A hereto and is incorporated by reference herein. The rights and obligations of the parties are governed by the express terms and conditions of the merger agreement and not by this summary. This summary does not purport to be complete and is qualified in its entirety by reference to the complete text of the merger agreement. Take-Two and Zynga urge you to read carefully this entire joint proxy statement/prospectus, including the annexes and the documents incorporated herein by reference, before making any decisions regarding the combination.

The merger agreement has been included to provide you with information regarding its terms, and Take-Two and Zynga recommend that you read the merger agreement carefully and in its entirety. Except for its status as the contractual document that establishes and governs the legal relations among the parties with respect to the combination, Take-Two and Zynga do not intend for the merger agreement to be a source of factual, business or operational information about Take-Two, Zynga, Merger Sub 1 or Merger Sub 2. The representations and warranties described below and included in the merger agreement were made by Take-Two and Zynga to each other as of specific dates. The assertions contained in those representations and warranties were made solely for purposes of the merger agreement and may be subject to important qualifications and limitations agreed to by Take-Two and Zynga in connection with negotiating the terms of the merger agreement, which you should consider as you read the representations and warranties in the merger agreement. The representations and warranties are qualified in their entirety by certain information Take-Two and Zynga filed with the SEC prior to the date of the merger agreement, as well as by confidential disclosure schedules that Take-Two and Zynga delivered to each other in connection with the execution of the merger agreement. Moreover, the representations and warranties may be subject to a contractual standard of materiality that may be different from what may be viewed as material to stockholders of Take-Two or stockholders of Zynga, and the representations and warranties may have been used for the purpose of allocating risk between Take-Two and Zynga rather than establishing matters as facts. Accordingly, you should not rely on the representations and warranties in the merger agreement as characterizations of the actual state of facts about Take-Two and Zynga, and you should read the information provided elsewhere in this joint proxy statement/prospectus and in the documents that are incorporated by reference into this joint proxy statement/prospectus for information regarding Take-Two and Zynga and their respective businesses. See the section titled “Where You Can Find More Information” beginning on page 219 of this joint proxy statement/prospectus.

Terms of the Combination; Merger Consideration

The merger agreement provides that, on the terms and subject to the conditions set forth in the merger agreement, Merger Sub 1 will merge into Zynga, with Zynga continuing as the surviving corporation, and a wholly owned subsidiary of Take-Two. Immediately after the effective time of the merger, Zynga will merge with Merger Sub 2, with Merger Sub 2 continuing as the surviving corporation, and a wholly owned subsidiary of Take-Two. At the effective time of the merger, each share of Zynga common stock issued and outstanding immediately prior thereto (excluding shares held by Zynga and its subsidiaries and stockholders exercising their appraisal rights) will be exchanged for (i) a number of shares of Take-Two common stock equal to the exchange ratio (as described below) and (ii) $3.50 in cash, without interest and less any applicable withholding taxes. The “exchange ratio” is subject to a two-way collar mechanism and will be determined as follows: (i) if the Take-Two common stock price (as defined below) is an amount greater than $181.88, then the exchange ratio will be 0.0350; (ii) if the Take-Two common stock price is an amount greater than or equal to $156.50 but less than or equal to $181.88, then the exchange ratio will be an amount equal to the quotient (rounded to five decimal places) obtained by dividing (x) $6.36 by (y) the Take-Two common stock price; and (iii) if the Take-Two common stock price is less than $156.50, then the exchange ratio will be 0.0406. The “Take-Two common stock price” will be the volume-weighted average sales price per share of Take-Two common stock on the Nasdaq Global Select Market for the consecutive period beginning at 9:30 a.m. New York time on the twenty-third trading day immediately preceding the closing date of the combination and concluding at 4:00 p.m. New York time on the third trading day immediately preceding such closing date.

Take-Two will not issue fractional shares of Take-Two common stock pursuant to the merger agreement. Instead, each Zynga stockholder who otherwise would have been entitled to receive a fraction of a share of Take-Two common stock will receive, in lieu thereof, cash in an amount equal to such fractional amount multiplied by the last reported sale price of Take-Two common stock on the last complete trading day prior to the date of the merger, as provided in the merger agreement.

The per share merger consideration will be appropriately adjusted to reflect the effect of any stock split, subdivision, consolidation, combination, reclassification, dividend or distribution of shares or other change with respect to the shares of Take-Two common stock or shares of Zynga common stock prior to the effective time of the merger.

Completion of the Combination

Unless the parties agree otherwise, the closing of the combination will take place on the third business day after the satisfaction or waiver (subject to applicable law) of the conditions to the closing of the combination have been satisfied or waived (other than those conditions that, by their nature, are to be satisfied at the closing of the combination, but subject to the satisfaction or, to the extent permitted by law, waiver of those conditions as of the closing of the combination). The combination will be effective on the date shown on the certificates of merger filed with the Secretary of State of the State of Delaware, in accordance with the laws of Delaware, but in any event, the subsequent merger will be effective immediately following the effective time of the merger.

Representations and Warranties

The merger agreement contains representations and warranties made by each of Zynga and Take-Two. Zynga has made representations and warranties regarding, among other things:

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corporate organization and power;

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qualification to do business;

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absence of conflict or violation;

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consents and approvals;

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authorization and validity of agreement;

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capitalization and related matters;

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subsidiaries and equity investments;

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SEC reports;

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absence of certain changes or events;

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tax matters;

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absence of undisclosed liabilities;

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property;

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intellectual property;

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licenses and permits;

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compliance with law;

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litigation;

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contracts;

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employee benefit plans;

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insurance;

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affiliate transactions;

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platforms, vendors and advertisers;

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labor matters;

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environmental matters;

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no brokers;

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state takeover statutes;

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opinion of financial advisor;

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board approval;

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requisite stockholder vote;

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illegal or unauthorized payments, political contributions and exports;

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absence of illegal or unauthorized payments or political contributions to foreign officials;

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privacy and data security;

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CARES Act; and

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stock ownership.

Take-Two has made representations and warranties regarding, among other things:

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organization;

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qualification to do business;

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no conflicts or violation;

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consents and approvals;

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authorization and validity of agreement;

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capitalization and related matters;

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subsidiaries and equity investments;

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SEC filings;

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absence of certain changes or events;

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tax matters;

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absence of undisclosed liabilities;

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compliance with law;

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litigation;

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no brokers;

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state takeover statutes;

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board approval;

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requisite stockholder vote;

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stock ownership;

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financing; and

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opinion of financial advisor.

The merger agreement also contains certain representations and warranties of Take-Two with respect to Merger Sub 1 and Merger Sub 2, including corporate organization, qualification to do business, no conflicts or violation and authority with respect to the execution and delivery of the merger agreement.

Many of the representations and warranties in the merger agreement are qualified by a “materiality” or “material adverse effect” standard (that is, they will not be deemed to be untrue or incorrect unless their failure to be true or correct, individually or in the aggregate, would, as the case may be, be material or have a material adverse effect). For purposes of the merger agreement, a “material adverse effect” means, with respect to a party, any event, change, circumstance, effect, development or state of facts that, individually or in the aggregate, has had, or is reasonably likely to have, a material adverse effect on the business, financial condition or results of operations of a party and its subsidiaries, taken as a whole, or a “material adverse effect” will not include any event, change, circumstance, effect, development or state of facts arising out of or attributable to:

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general economic or political conditions or securities, credit, financial or other capital markets, in each case in the United States or any foreign jurisdiction (except to the extent such event, change, circumstance, effect, development or state of facts affects such party and its subsidiaries in a materially disproportionate manner when compared to the effect of such event, change, circumstance, effect, development or state of facts on other similarly situated persons in the industry in which such party and its subsidiaries operate);

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conditions generally affecting any of the industries in which such party and its subsidiaries operate (except to the extent such event, change, circumstance, effect, development or state of facts affects such party and its subsidiaries in a materially disproportionate manner when compared to the effect of such event, change, circumstance, effect, development or state of facts on other similarly situated persons in the industry in which such party and its subsidiaries operate);

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changes in law;

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changes in GAAP;

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the public announcement, pendency or performance of the merger agreement or the combination, or the consummation of the combination;

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acts of war, armed hostilities, sabotage, terrorism, civil unrest or any escalation or worsening of any such acts threatened or underway as of January 9, 2022;

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earthquakes, hurricanes, floods, wildfires, or other natural disasters or weather conditions, epidemics, pandemics or disease outbreaks (including COVID-19) or other force majeure events, or any escalation or worsening of the foregoing underway as of January 9, 2022;

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any failure by a party to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period;

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any change in the market price or trading volume of a party’s securities;

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the taking of any specific action expressly required by, or the failure to take any specific action expressly prohibited by, the merger agreement;

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any legal proceeding commenced or threatened against such party or its representatives after January 9, 2022, and arising from allegations of breach of fiduciary duties relating to the merger agreement or the transactions contemplated thereby or from allegations of inadequate, false or misleading public disclosure by such party with respect to the merger agreement or transactions contemplated thereby; or

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any COVID-19 measures or actions taken in response to COVID-19 measures.

“COVID-19 measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester, vaccination or other mandatory directive imposed by applicable law, order, writ, injunction, judgment or decree in connection with or in response to COVID-19.

As described directly under “The Merger Agreement” beginning on page 118 above, the parties to the merger agreement made the representations and warranties contained therein solely for purposes of the contract between the parties, and those representations and warranties are intended to be and should not be relied upon by any other person. Further, the assertions embodied in those representations and warranties are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the merger agreement, and you should not rely upon the representations and warranties as accurate or complete or characterizations of the actual state of facts as of any specified date.

Conduct of Business

Each of Zynga and Take-Two has agreed to certain covenants in the merger agreement restricting the conduct of its business between the date of the merger agreement and the effective time. In general, and subject to exceptions specified in the merger agreement or previously disclosed in writing to the other party as provided in the merger agreement, each of Zynga and Take-Two has agreed to (i) use reasonable best efforts to conduct in all material respects its and its subsidiaries’ business in the ordinary course of business and in a manner consistent with past practice and, in all material respects, in compliance with applicable laws, (ii) use reasonable best efforts to maintain in all material respects its and its subsidiaries’ assets, properties, rights and operations in accordance with then-present practice in a condition suitable for their then-current use and (iii) use reasonable best efforts to preserve substantially intact its and its subsidiaries’ business organization, to keep available the services of its and its subsidiaries’ then-present officers and to preserve, in all material respects, its present relationships with all persons with whom it has significant business relationships.

In addition, Zynga has agreed to specific restrictions relating to the conduct of its business between the date of the merger agreement and the effective time, including not to do any of the following (subject, in each case, to exceptions specified below and in the merger agreement or previously disclosed in writing to the other party as provided in the merger agreement) without Take-Two’s prior written consent:

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enter into any material transaction other than in the ordinary course or business;

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make any change in any of its organizational documents; issue any additional shares of capital stock (other than upon the exercise of options to purchase Zynga common shares or pursuant to the terms of restricted stock units, performance stock units or convertible senior notes covering Zynga common shares, in each case outstanding on the date of the merger agreement) or other equity securities or grant any option, warrant or right to acquire any capital stock or other equity interests; or alter in any way its outstanding securities or its capitalization;

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make any sale, assignment or other conveyance of any material tangible asset or property other than in the ordinary course of business or pursuant to Zynga’s existing credit agreement;

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subject any of its material assets, properties or rights to any lien, other than certain permitted liens;

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(i) redeem, retire, purchase or otherwise acquire any shares of the capital stock, limited liability company interests or partnership interests or other ownership interests of it or its subsidiaries, (ii) declare, set aside or pay any dividends or other distribution in respect of shares of Zynga common stock, (iii) prepay, redeem, repurchase or retire any of Zynga’s indebtedness, or (iv) prepay or otherwise satisfy any obligations outstanding under any capital leases;

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acquire, lease or sublease any real property, other than in the ordinary course of business;

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except as required by the terms of existing Zynga employee benefit plans or as required by law, (i) increase the compensation or benefits payable or to become payable to any current or former

employee, executive officer, director or other individual service provider of Zynga or any of its subsidiaries, (ii) establish, adopt, enter into or materially amend any Zynga employee benefit plan (or any such plan, agreement, program, policy commitment or arrangement that would be a Zynga employee benefit plan if it were in existence on the date of the merger agreement), (iii) increase the compensation or benefits payable under any existing severance, termination, change in control, or retention pay policy or Zynga employee benefit plan, (iv) except as specifically provided in the merger agreement, take any affirmative action to accelerate the vesting of any stock- or stock-based compensation (except for certain administrative actions), (v) grant any new awards under any bonus, incentive, or performance plan (except for certain administrative actions), (vi) fund or secure the payment of compensation or benefits under any existing benefit plan (except for certain administrative actions), (vii) grant or promise any tax offset payment award under any existing benefit plan, (viii) make any loan or cash advance to any current or former director, executive officer, employee or other individual service provider other than advances for business expenses in the ordinary court of business or draws and advances provided under the terms of any Zynga employee benefit plan that is a commission or similar plan or program in the ordinary course of business, (ix) hire, promise to hire or promote any employee or other service provider or terminate any employee or other service provider without “cause”; or (xii) implement any facility closing or employee layoff that does not comply with the WARN Act;

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enter into any agreement, contract, or commitment (or series of such similar transactions) other than a certain permitted leases, that would require capital expenditures individually or in the aggregate in excess of $30,000,000 per calendar year;

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pay, lend or advance any amount to, or sell, assign, transfer, license or lease any properties or assets to, or enter into any material agreement or arrangement with, any of its affiliates (other than Zynga’s subsidiaries) covered by 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404, other than pursuant to Zynga’s existing credit agreement;

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make any material change in any method of accounting or accounting principle, method, estimate or practice except for any such change required by reason of a concurrent change in GAAP, or write off as uncollectible any material accounts receivable except in the ordinary course of business and consistent with past practice;

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(i) sell, assign, transfer, license (other than non-exclusive licenses in the ordinary course of business), fail to maintain, grant, pledge, encumber, dedicate to the public, cancel, allow to lapse (except where no further renewals are available), or abandon, including by failure to pay the required fees in any jurisdiction, or otherwise dispose of any material Zynga intellectual property (other than liens pursuant to Zynga’s existing credit agreement), or (ii) disclose any material trade secrets without entering into an agreement protecting the confidentiality of such trade secrets, except the launch, release and marketing (including initial announcements) to the general public of previously unreleased Zynga products or services in the ordinary course of business consistent with past practice;

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(i) make or change any material tax election, (ii) change an annual accounting period, (iii) file any amended material tax return, (iv) enter into any closing agreement with respect to a material amount of tax, (v) settle any material tax claim or assessment or (vi) surrender any right to claim a refund of material taxes, other than in the ordinary course of business consistent with past practice, without consultations with Take-Two;

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settle, release or forgive any claim requiring payments to be made by Zynga or any of its subsidiaries in excess of $1,000,000 individually, or $10,000,000 in the aggregate, other than intercompany claims, or waive any right with respect to any material claim held by Zynga or any of its subsidiaries other than in the ordinary course of business and consistent with past practice, or settle or resolve any claim against Zynga or any of its subsidiaries on terms that require Zynga or any of its subsidiaries to materially alter its existing business practices;

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lend money to any person (other than to Zynga or its wholly owned subsidiaries, or advances for business expenses to employees in the ordinary course or business) or incur or guarantee any indebtedness for borrowed money (other than from Zynga or its subsidiaries or pursuant to Zynga’s existing credit agreement); or

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commit or agree to do or authorize any of the foregoing.

In addition, Take-Two has agreed to specific restrictions relating to the conduct of its business between the date of the merger agreement and the effective time, including not to do any of the following (subject, in each case, to exceptions specified below and in the merger agreement or previously disclosed in writing to the other party as provided in the merger agreement) without Zynga’s prior written consent:

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make any change in any of its organizational documents or the organizational documents of Merger Sub 1 or Merger Sub 2 or issue any additional shares of capital stock or other equity securities or grant any option, warrant or right to acquire any capital stock or other equity securities, other than with respect to (i) grants of options to purchase Take-Two common stock or Take-Two restricted stock units or other equity incentives under Take-Two’s equity plan in the ordinary course of business; (ii) shares of Take-Two common stock issuable upon exercise of restricted stock units or stock options, in each case, outstanding on the date of the merger agreement or issued in accordance with the merger agreement; or (iii) shares of Take-Two common stock issuable to directors of Take-Two in accordance with Take-Two’s director compensation plans;

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redeem, retire, purchase or otherwise acquire any shares of capital stock or other ownership interests of Take-Two and its subsidiaries or declare, set aside or pay any dividends or other distributions in respect of such shares or interests other than (i) the purchase, redemption or other acquisition of Take-Two common stock or any Take-Two equity awards from current or former employees of Take-Two as permitted or contemplated by the terms of any employment or option agreement or Take-Two employee benefit plan, (ii) required tax withholding in connection with the vesting, settlement and/or exercise of any Take-Two employee benefit plan, (iii) forfeitures of any Take-Two equity award pursuant to their terms in effect on the date of the merger agreement and (iv) redemptions or repurchases of Take-Two common stock pursuant to Take-Two’s previously announced share repurchase program for an amount not exceeding 2,000,000 shares of Take-Two common stock;

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acquire, lease or sublease any material assets, or properties (including any real property), or enter into any other transaction that would reasonably be expected to (i) prevent, materially hinder or materially delay the receipt of the necessary or required waiting period expirations or terminations, consents, approvals and authorizations for the transactions, under the HSR Act and similar laws of other jurisdictions, and certain other regulatory laws; (ii) materially increase the risk of any governmental entity entering an order prohibiting the consummation of the combination or (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise;

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make any change in any method of accounting or accounting principle, method, estimate or practice except for any such change required by reason of a concurrent change in GAAP, or write off as uncollectible any material accounts receivable except in the ordinary course of business and consistent with past practice;

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(i) make or change any material tax election, (ii) change an annual accounting period, (iii) file any amended material tax return, (iv) enter into any closing agreement with respect to a material unreserved amount of tax, (v) settle any material unreserved tax claim or assessment or (vi) surrender any right to claim a refund of material taxes, other than in the ordinary course of business consistent with past practice, without consultations with the company;

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take any action, or knowingly fail to take any action, which action or failure to act would or would be reasonably expected to prevent or impede the merger, taken together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code;

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liquidate (completely or partially), dissolve or adopt any plan or resolution providing for any such liquidation or dissolution, in each case, with respect to Take-Two, Merger Sub 1 or Merger Sub 2;

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incur or guarantee any indebtedness for borrowed money, other than from Take-two or its wholly owned subsidiaries or pursuant to the financing in connection with the combination (the “financing”) or under Take-Two’s existing credit agreement; or

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commit or agree to do or authorize any of the foregoing.

Go-Shop Period; Restrictions on Solicitations of Other Offers

Zynga Go-Shop Period

Under the merger agreement, until the expiration of the go-shop period at 11:59 p.m. (New York time) on February 24, 2022, which is referred to as the “go-shop period”, which period expired on February 24, 2022, Zynga, its subsidiaries and affiliates, and its and their respective representatives, had the right to, among other things, (i) solicit, initiate, propose, induce the making or submission of, encourage or facilitate in any way any offer, inquiry or proposal that constitutes, or could reasonably be expected to lead to, a Zynga alternative acquisition proposal, including by (a) providing any nonpublic information relating to Zynga, its subsidiaries or their respective businesses, properties or assets and (b) providing access in connection therewith to Zynga personnel, in each case, to any third party, that has either (x) entered into a confidentiality agreement with Zynga having provisions that are not materially less favorable in the aggregate to Zynga than the provisions of the existing confidentiality agreement between Zynga and Take-Two (excluding standstill provisions) and that does not contain provisions prohibiting Zynga from complying with applicable notice requirements of the merger agreement or (y) entered into any confidentiality agreement with Zynga prior to the date of the merger agreement that does not prohibit Zynga from complying with applicable notice requirements of the merger agreement (each, a “Zynga acceptable confidentiality agreement”); and (ii) enter into or continue discussions with third parties in connection therewith, and cooperate with or assist or participate in, or facilitate in any way, any inquiries, offers, proposals, discussions or negotiations or any effort or attempt to make any Zynga alternative acquisition proposal or other proposals that could reasonably be expected to lead to a Zynga alternative acquisition proposal, including by granting a waiver, amendment or release under any pre-existing “standstill,” “confidentiality” or other similar provision to the extent necessary to allow for a Zynga alternative acquisition proposal or amendment to a Zynga alternative acquisition proposal to be made to Zynga or the Zynga board of directors. If as a result of its activities during the go-shop period, Zynga provided to any third parties access in writing to nonpublic information that was not previously made available to Take-Two, Zynga is required to provide such information to Take-Two promptly following such provision to any third parties.

Zynga No-Shop Period

Under the merger agreement, commencing at 12:01 a.m. (New York time) on February 25, 2022, which is referred to as the “Zynga no-shop period start date,” until the earlier of the effective time and the date, if any, on which the merger agreement is terminated, subject to certain exceptions, Zynga may not, and must cause its subsidiaries and its directors and officers not to, and must not authorize or permit its other representatives to:

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solicit, initiate, propose, induce the making or submission of, or knowingly encourage or facilitate in any way any offer, inquiry or proposal that constitutes, or could reasonably be expected to lead to, a Zynga alternative acquisition proposal (other than from an excluded party), including by providing or furnishing to any person (other than Take-Two and its representatives or any excluded party) any non-public information or data relating to Zynga, any of its subsidiaries or their respective businesses, properties or assets and affording access to any personnel of Zynga or its subsidiaries to any person (other than Take-Two and its representatives or any excluded party), in each case, in connection with a Zynga alternative acquisition proposal;

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continue, enter into, engage in or otherwise participate in any discussions or negotiations with any person (other than, prior to receipt of the required Zynga vote), or any excluded party regarding any Zynga alternative acquisition proposal (or inquiries, offers or proposals or any other effort or attempt that could reasonably be expected to lead to a Zynga alternative acquisition proposal), including discussions (i) regarding the entry into any agreement to consummate any Zynga alternative acquisition proposal, (ii) regarding the approval or endorsement of any Zynga alternative acquisition proposal or (iii) in connection with any Zynga alternative acquisition proposal that would require Zynga to abandon, terminate or fail to consummate the Merger or the transactions contemplated by the merger agreement;

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grant any waiver, amendment or release of any third party under any standstill or confidentiality provision in connection with the preceding bullets (provided that Zynga and its subsidiaries may grant a waiver of or terminate any standstill or confidentiality obligation of any third party with respect to Zynga or any of its subsidiaries to allow such third party to make a Zynga alternative acquisition proposal if the Zynga board of directors determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable law); or

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agree or resolve to take, or take, any of the foregoing prohibited actions.

In the merger agreement, Zynga agreed that at the Zynga no-shop period start date, Zynga would, and cause its subsidiaries and its directors and officers to, and not permit or authorize its other representatives to fail to, immediately cease any and all existing activities, discussions or negotiations with any parties previously conducted with respect to any Zynga alternative acquisition proposal, other than with any excluded party.

Take-Two No-Shop Period

Under the merger agreement, commencing on the date of the merger agreement (the “Take-Two no-shop period start date”), until the earlier of the effective time and the date, if any, on which the merger agreement is terminated, subject to certain exceptions, Take-Two may not, and must cause its subsidiaries and its directors and officers not to, and must not authorize or permit its other representatives to:

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solicit, initiate, propose, induce the making or submission of, or knowingly encourage or facilitate in any way any offer, inquiry or proposal that constitutes, or could reasonably be expected to lead to, a Take-Two alternative acquisition proposal, including by providing or furnishing to any person (other than Zynga and its representatives) any non-public information or data relating to Take-Two, any of its subsidiaries or their respective businesses, properties or assets and affording access to any personnel of Take-Two or its subsidiaries to any person (other than Zynga and its representatives), in each case, in connection with a Take-Two alternative acquisition proposal;

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continue, enter into, engage in or otherwise participate in any discussions or negotiations with any person regarding any Take-Two alternative acquisition proposal (or inquiries, offers or proposals or any other effort or attempt that could reasonably be expected to lead to a Take-Two alternative acquisition proposal), including discussions (i) regarding the entry into any agreement to consummate any Take-Two alternative acquisition proposal, (ii) regarding the approval or endorsement of any Take-Two alternative acquisition proposal or (iii) in connection with any Take-Two alternative acquisition proposal that would require Take-Two to abandon, terminate or fail to consummate the Merger or the transactions contemplated by the merger agreement;

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grant any waiver, amendment or release of any third party under any standstill or confidentiality provision in connection with the preceding bullets (provided that Take-Two and its subsidiaries may grant a waiver of or terminate any standstill or confidentiality obligation of any third party with respect to Take-Two or any of its subsidiaries to allow such third party to make a Take-Two alternative acquisition proposal if the Take-Two board of directors determines in good faith, after consultation

with its financial advisors and outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable law); or

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agree or resolve to take, or take, any of the foregoing prohibited actions.

In the merger agreement, Take-Two agreed that at the Take-Two no-shop period start date, Take-Two would, and cause its subsidiaries and its directors and officers to, and not permit or authorize its other representatives to fail to, immediately cease any and all existing activities, discussions or negotiations with any parties previously conducted with respect to any Take-Two alternative acquisition proposal.

Zynga Alternative Acquisition Proposals

Notwithstanding the foregoing non-solicitation restrictions, the Zynga board of directors, directly or indirectly through subsidiaries or representatives of Zynga, may, after the Zynga no-shop period start date and prior to the receipt of the required Zynga vote, (i) engage in negotiations or discussions with any third party (including any excluded party) that has made an unsolicited bona fide written Zynga alternative acquisition proposal not resulting from or arising out of a material breach of the foregoing non-solicitation restrictions and (ii) furnish nonpublic information or data relating to Zynga or any of its subsidiaries to such third party if, prior to so furnishing such information such third party has executed a Zynga acceptable confidentiality agreement; provided that Zynga provides to Take-Two any nonpublic information that is provided to such third party that was not previously made available to Take-Two, promptly following the time it is provided to such third party; provided, further, that the Zynga board of directors is permitted to take an action described in the foregoing clauses (i) or (ii) if, and only if, prior to taking such particular action, the Zynga board of directors has determined in good faith after consultation with outside legal and financial advisors that such Zynga alternative acquisition proposal either constitutes a Zynga superior proposal or would reasonably be expected to lead to a Zynga superior proposal and that the failure to take such action would be inconsistent with the fiduciary duties of the Zynga board of directors under applicable law.

Take-Two Alternative Acquisition Proposals

Notwithstanding the foregoing non-solicitation restrictions, the Take-Two board of directors, directly or indirectly through subsidiaries or representatives of Take-Two, may, after the Take-Two no-shop period start date and prior to the receipt of the vote required to approve each of the proposals at the Take-Two special meeting (the “required Take-Two vote”), (i) engage in negotiations or discussions with any third party that has made an unsolicited bona fide written Take-Two alternative acquisition proposal not resulting from or arising out of a material breach of the foregoing non-solicitation restrictions and (ii) furnish nonpublic information or data relating to Take-Two or any of its subsidiaries to such third party if, prior to so furnishing such information such third party has either (x) entered into a confidentiality agreement with Take-Two having provisions that are not materially less favorable in the aggregate to Take-Two than the provisions of the existing confidentiality agreement between Zynga and Take-Two (excluding standstill provisions) and that does not contain provisions prohibiting Take-Two from complying with applicable notice requirements of the merger agreement or (y) entered into any confidentiality agreement with Take-Two prior to the date of the merger agreement that does not prohibit Take-Two from complying with applicable notice requirements of the merger agreement; provided that Take-Two provides to Zynga any nonpublic information that is provided to such third party that was not previously made available to Zynga, promptly following the time it is provided to such third party; provided, further, that the Take-Two board of directors is permitted to take an action described in the foregoing clauses (i) or (ii) if, and only if, prior to taking such particular action, the Take-Two board of directors has determined in good faith after consultation with outside legal and financial advisors that such Take-Two alternative acquisition proposal either constitutes a Take-Two superior proposal or would reasonably be expected to lead to a Take-Two superior proposal and that the failure to take such action would be inconsistent with the fiduciary duties of the Take-Two board of directors under applicable law.

Notice and Information Requirements

Zynga is required to:

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promptly (and in any event within forty-eight (48) hours of its receipt thereof) (i) notify Take-Two of any Zynga alternative acquisition proposal or any other written proposals or inquiries, that, to the knowledge of Zynga, is received by Zynga or any of its subsidiaries or representatives that would reasonably be expected to lead to a Zynga alternative acquisition proposal, which notice shall identify the material terms and conditions thereof and the person making any such Zynga alternative acquisition proposal (or other written proposal or inquiry that would reasonably be expected to lead to a Zynga alternative acquisition proposal), (ii) provide to Take-Two copies of any written documentation material to understanding such Zynga alternative acquisition proposal which is received by Zynga from the person making such Zynga alternative acquisition proposal (or other written proposal or inquiry that would reasonably be expected to lead to a Zynga alternative acquisition proposal) and (iii) notify Take-Two of any determination by Zynga’s board of directors regarding its recommendation with respect to such Zynga alternative acquisition proposal; and

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keep Take-Two reasonably informed, on a prompt basis (but in no event later than forty-eight (48) hours), of the status and any material developments regarding any such Zynga alternative acquisition proposal or any material changes to the material terms of any such Zynga alternative acquisition proposal.

Take-Two is required to:

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promptly (and in any event within forty-eight (48) hours of its receipt thereof) (i) notify Zynga of any Take-Two alternative acquisition proposal or any other written proposals or inquiries, that, to the knowledge of Take-Two, is received by Take-Two or any of its subsidiaries or representatives that would reasonably be expected to lead to a Take-Two alternative acquisition proposal, which notice shall identify the material terms and conditions thereof and the person making any such Take-Two alternative acquisition proposal (or other written proposal or inquiry that would reasonably be expected to lead to a Take-Two alternative acquisition proposal), (ii) provide to Zynga copies of any written documentation material to understanding such Take-Two alternative acquisition proposal which is received by Take-Two from the person making such Take-Two alternative acquisition proposal (or other written proposal or inquiry that would reasonably be expected to lead to a Take-Two alternative acquisition proposal) and (iii) notify Zynga of any determination by Take-Two’s board of directors regarding its recommendation with respect to such Take-Two alternative acquisition proposal; and

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keep Zynga reasonably informed, on a prompt basis (but in no event later than forty-eight (48) hours), of the status and any material developments regarding any such Take-Two alternative acquisition proposal or any material changes to the material terms of any such Take-Two alternative acquisition proposal.

Certain Definitions

For purposes of the merger agreement:

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a “Zynga alternative acquisition proposal” is any proposal or offer made by any person (other than Take-Two, Merger Sub 1 or Merger Sub 2) or group of persons as defined in Section 13(d)(3) of the Exchange Act to purchase or otherwise acquire, directly or indirectly, in one transaction or a series of transactions, (i) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of more than twenty percent (20%) of any class of equity securities of Zynga pursuant to a merger, reorganization, recapitalization, consolidation or other business combination, sale of shares of capital stock by Zynga, tender offer, exchange offer or similar transaction or (ii) any one or more assets or businesses of Zynga and its subsidiaries that constitute more than twenty percent (20%) of the consolidated revenues or assets of Zynga and its subsidiaries, taken as a whole;

•

a “Take-Two alternative acquisition proposal” is any proposal or offer made by any person (other than Zynga or any of its affiliates) or group of persons as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) to purchase or otherwise acquire, directly or indirectly, in one transaction or a series of transactions, (i) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of more than twenty percent (20%) of any class of equity securities of Take-Two pursuant to a merger, reorganization, recapitalization, consolidation or other business combination, sale of shares of capital stock by Take-Two, tender offer, exchange offer or similar transaction or (ii) any one or more assets or businesses of Take-Two and its subsidiaries that constitute more than twenty percent (20%) of the consolidated revenues or assets of Take-Two and its subsidiaries, taken as a whole;

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a “Zynga superior proposal” is any alternative acquisition proposal (with all percentages in the definition of “Zynga alternative acquisition proposal” increased to fifty percent (50%)) made by any person or group of persons (other than Take-Two, Merger Sub 1, Merger Sub 2, Zynga or any of their respective affiliates), that did not arise out of a material breach of the no-shop provisions under the merger agreement as described under the section titled “s—Zynga No-Shop Period”, on terms that the Zynga board of directors determines in good faith, after consultation with its outside legal counsel and financial advisors and considering such factors as the Zynga board of directors considers to be appropriate, are more favorable to Zynga’s stockholders than the transactions contemplated by the merger agreement, taking into account all terms and conditions of such transaction (including, as applicable, any changes to the terms of the merger agreement committed to by Take-Two to Zynga in writing in response to such Zynga alternative acquisition proposal, any breakup fees, expense reimbursement provisions and financial terms);

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a “Take-Two superior proposal” is any alternative acquisition proposal (with all percentages in the definition of “Take-Two alternative acquisition proposal” increased to fifty percent (50%)) made by any person or group of persons (other than Take-Two, Merger Sub 1, Merger Sub 2, Zynga or any of their respective affiliates) (i) that did not arise out of a material breach of the no-shop provisions under the merger agreement as described under the section titled “—Take-Two No-Shop Period”, on terms that the Take-Two board of directors determines in good faith, after consultation with its outside legal counsel and financial advisors and considering such factors as the Take-Two board of directors considers to be appropriate, are more favorable to Take-Two’s stockholders than the transactions contemplated by the merger agreement, taking into account all terms and conditions of such transaction (including, as applicable, any changes to the terms of the merger agreement committed to by Zynga to Take-Two in writing in response to such Take-Two alternative acquisition proposal, any breakup fees, expense reimbursement provisions and financial terms) and (ii) (a) that is conditioned upon the termination of the merger agreement or any other failure of the combination to be consummated or (b) that otherwise does not expressly endorse or support the merger agreement and the consummation of the combination; and

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an “excluded party” is a person or group of persons who, prior to Zynga no-shop period start date, has submitted a written Zynga alternative acquisition proposal to Zynga or one of its representatives, and the Zynga board of directors has determined prior to the Zynga no-shop period start date in good faith after consultation with outside legal and financial advisors that such Zynga alternative acquisition proposal either constitutes a Zynga superior proposal or would reasonably be expected to lead to a Zynga superior proposal; provided, however, that a person or group of persons will immediately cease to be an excluded party if such Zynga alternative acquisition proposal is withdrawn by such person or group of persons, it being understood that a modification of a Zynga alternative acquisition proposal submitted by a person or group of persons will not be deemed to be a withdrawal or termination of a Zynga alternative acquisition proposal by such person or group of persons, but only if the Zynga board of directors has determined in good faith after consultation with outside legal and financial advisors that such Zynga alternative acquisition proposal, as so modified, either constitutes a Zynga superior proposal or would reasonably be expected to lead to a Zynga superior proposal.

Changes in Board Recommendations

Zynga Change in Recommendation

As described above, and subject to the provisions described below, the Zynga board of directors has made the recommendation that Zynga stockholders vote “FOR” the proposal to adopt the merger agreement. Under the merger agreement, except as described below, the Zynga board of directors may not (i) withdraw (or qualify, amend or modify in any manner adverse to Take-Two), or propose publicly to withdraw (or qualify, amend or modify in any manner adverse to Take-Two), its recommendation that the stockholders of Zynga vote in favor of the approval of the combination; (ii) approve, recommend or declare advisable any Zynga alternative acquisition proposal; (iii) fail to recommend against acceptance of a tender offer or exchange offer that is a Zynga alternative acquisition proposal or (iv) refuse to affirm publicly the Zynga recommendation following a reasonable written request by Take-Two to provide such reaffirmation, provided, that the Zynga board of directors will not be required to affirm the recommendation made more than once per Zynga alternative acquisition proposal or material modification of such Zynga alternative acquisition.

At any time prior to obtaining the required Zynga vote, the Zynga board of directors may (i) effect a Zynga change of recommendation following a bona fide written Zynga alternative acquisition proposal that did not result from or arise out of a material breach by Zynga of the foregoing non-solicitation restrictions and which the Zynga board of directors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Zynga superior proposal, and that the failure to take such action would be inconsistent with its fiduciary duties under applicable law; (ii) following receipt of a bona fide written Zynga alternative acquisition proposal which the Zynga board of directors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Zynga superior proposal, terminate the merger agreement for the purpose of entering into an alternative acquisition agreement with respect to such Zynga superior proposal, if the Zynga board of directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law and, concurrently with entering into such alternative acquisition agreement, Zynga terminates the merger agreement and pays the applicable termination fee, as described in the section entitled “—Termination Fees and Expenses; Liability for Breach” or (iii) effect a Zynga change of recommendation in response to a Zynga intervening event if the Zynga board of directors determines in good faith, in consultation with its financial advisors and outside legal counsel, that the failure to effect a Zynga change of recommendation would be inconsistent with its fiduciary duties under applicable law.

Prior to the Zynga board of directors effecting a Zynga change of recommendation in response to a Zynga alternative acquisition proposal or causing Zynga to terminate the merger agreement for purposes of entering into a Zynga alternative acquisition agreement, in each case as described in the paragraph above, Zynga must provide to Take-Two (i) at least five (5) days’ prior written notice (with two (2) additional days’ prior written notice required in the case of any material amendment to the amount or form of consideration payable in connection with the applicable Zynga alternative acquisition proposal) of Zynga’s intention to take such action, which shall include a description of the terms and conditions of the Zynga superior proposal, the identity of the person making the Zynga superior proposal and a copy of any proposed alternative acquisition agreement(s) relating to such Zynga superior proposal and (ii) an opportunity to liaise with Zynga and its outside legal and financial advisors during such five (5) day period (or, if applicable, subsequent two (2) day period) to discuss such Zynga superior proposal and negotiate in good faith any adjustments or revisions to the terms and conditions of the merger agreement proposed by Take-Two in response thereto, such that such Zynga alternative acquisition proposal would no longer constitute a Zynga superior proposal.

Prior to the Zynga board of directors effecting a Zynga change of recommendation in response to a Zynga intervening event, it is required to give Take-Two (i) at least five (5) days’ prior written notice of Zynga’s intention to effect a Zynga change of recommendation in response to such Zynga intervening event, which shall include a description in reasonable detail of the applicable Zynga intervening event, and (ii) an opportunity to liaise with Zynga and its outside legal and financial advisors during such five (5) day period to discuss such

Zynga intervening event and negotiate in good faith any adjustments or revisions to the terms and conditions of the merger agreement proposed by Take-Two in response thereto, such that the failure to effect a Zynga change of recommendation would no longer be inconsistent with the fiduciary duties of the Zynga board of directors under applicable law.

For purposes of the merger agreement, a “Zynga intervening event” is any material event, change, occurrence or development that materially affects the business, financial condition or operations of Zynga and was unknown and not reasonably foreseeable to the Zynga board of directors and executive officers of Zynga as of the date of the merger agreement (or, if known or reasonably foreseeable, the material consequences of which were not known or reasonably foreseeable to the Board and executive officers of Zynga, after due inquiry, as of the date of the merger agreement), prior to obtaining the required Zynga vote; provided, that receipt, existence or terms of a Zynga alternative acquisition proposal or Zynga superior proposal is not deemed to be a Zynga intervening event under the merger agreement.

Under the merger agreement, the following actions shall not (in and of themselves) constitute a Zynga change of recommendation, or otherwise constitute a basis for Take-Two, Merger Sub 1 or Merger Sub 2 to terminate the merger agreement: (i) a determination by the Zynga board of directors that a Zynga alternative acquisition proposal constitutes, or would reasonably be expected to result in a Zynga superior proposal; (ii) the delivery, in and of itself, of a notice of a Zynga change of recommendation to Take-Two; (iii) any public disclosure of the actions described in clauses (i) or (ii) required by applicable law, so long as any such disclosure includes an express reaffirmation of the Zynga recommendation; or (iv) the making, in and of itself, of a customary “stop, look and listen” communication to Zynga’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act.

The merger agreement does not restrict Zynga or the Zynga board of directors from complying with its disclosure obligations under applicable law or rules and policies of the NASDAQ with regard to any Zynga alternative acquisition proposal, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) or Item 1012(a) of Regulation M-A under the Exchange Act (or any similar communication to stockholders).

Take-Two Change in Recommendation

As described above, and subject to the provisions described below, the Take-Two board of directors has made the recommendation that Take-Two stockholders vote “FOR” the Take-Two share issuance proposal and the Take-Two charter amendment proposal. Under the merger agreement, except as described below, the Take-Two board of directors may not (i) withdraw (or qualify, amend or modify in any manner adverse to Zynga), or propose publicly to withdraw (or qualify, amend or modify in any manner adverse to Zynga), its recommendation that the stockholders of Take-Two vote in favor of the approval of the combination; (ii) approve, recommend or declare advisable any Take-Two alternative acquisition proposal; (iii) fail to recommend against acceptance of a tender offer or exchange offer that is a Take-Two alternative acquisition proposal or (iv) refuse to affirm publicly the Take-Two recommendation following a reasonable written request by Zynga to provide such reaffirmation, provided, that the Take-Two board of directors will not be required to affirm the recommendation made more than once per Take-Two alternative acquisition proposal or material modification of such Take-Two alternative acquisition proposal.

At any time prior to obtaining the required Take-Two vote, the Take-Two board of directors may (i) effect a Take-Two change of recommendation following a bona fide written Take-Two alternative acquisition proposal that did not result from or arise out of a material breach by Take-Two of the foregoing non-solicitation restrictions and which the Take-Two board of directors determines in good faith, in consultation with its financial advisors and outside legal counsel, is a Take-Two superior proposal, and that the failure to take such action would be inconsistent with its fiduciary duties under applicable law or (ii) effect a Take-Two change of recommendation in response to a Take-Two intervening event if the Take-Two board of directors determines in

good faith, in consultation with its financial advisors and outside legal counsel, that the failure to effect a Take-Two change of recommendation would be inconsistent with its fiduciary duties under applicable law.

Prior to the Take-Two board of directors effecting a Take-Two change of recommendation in response to a Take-Two alternative acquisition proposal, as described in the paragraph above, Take-Two must provide to Zynga (i) at least five (5) days’ prior written notice (with two (2) additional days’ prior written notice required in the case of any material amendment to the amount or form of consideration payable in connection with the applicable Take-Two alternative acquisition proposal) of Take-Two’s intention to take such action, which shall include a description of the terms and conditions of the Take-Two superior proposal, the identity of the person making the Take-Two superior proposal and a copy of any alternative acquisition agreement(s) relating to such Take-Two superior proposal and (ii) an opportunity to liaise with Take-Two and its outside legal and financial advisors during such five (5) day period (or, if applicable, subsequent two (2) day period) to discuss such Take-Two superior proposal and negotiate in good faith any adjustments or revisions to the terms and conditions of the merger agreement proposed by Zynga in response thereto, such that such Take-Two alternative acquisition proposal would no longer constitute a Take-Two superior proposal.

Prior to the Take-Two board of directors effecting a Take-Two change of recommendation in response to a Take-Two intervening event, it is required to give Zynga (i) at least five (5) days’ prior written notice of Take-Two’s intention to effect a Take-Two change of recommendation in response to such Take-Two intervening event, which shall include a description in reasonable detail of the applicable Take-Two intervening event, and (ii) an opportunity to liaise with Take-Two and its outside legal and financial advisors during such five (5) day period to discuss such Take-Two intervening event and negotiate in good faith any adjustments or revisions to the terms and conditions of the merger agreement proposed by Zynga in response thereto, such that the failure to effect a Take-Two change of recommendation would no longer be inconsistent with the fiduciary duties of the Take-Two board of directors under applicable law.

For purposes of the merger agreement, a “Take-Two intervening event” is any material event, change, occurrence or development that materially affects the business, financial condition or operations of Take-Two and was unknown and not reasonably foreseeable to the Take-Two board of directors and executive officers of Take-Two as of the date of the merger agreement (or, if known or reasonably foreseeable, the material consequences of which were not known or reasonably foreseeable to the Board and executive officers of Take-Two, after due inquiry, as of the date of the merger agreement), prior to obtaining the Required Take-Two vote; provided, that receipt, existence or terms of a Take-Two alternative acquisition proposal or Take-Two superior proposal is not deemed to be a Take-Two intervening event under the merger agreement.

Under the merger agreement, the following actions shall not (in and of themselves) constitute a Take-Two change of recommendation, or otherwise constitute a basis for Zynga to terminate the merger agreement: (i) a determination by the Take-Two board of directors that a Take-Two alternative acquisition proposal constitutes, or would reasonably be expected to result in a Take-Two superior proposal; (ii) the delivery, in and of itself, of a notice of a Take-Two change of recommendation to Zynga; (iii) any public disclosure of the actions described in clauses (i) or (ii) required by applicable law, so long as any such disclosure includes an express reaffirmation of the Take-Two recommendation; or (iv) the making, in and of itself, of a customary “stop, look and listen” communication to Take-Two’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act.

The merger agreement does not restrict Take-Two or the Take-Two board of directors from complying with its disclosure obligations under applicable law or rules and policies of the NASDAQ with regard to any Take-Two alternative acquisition proposal, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) or Item 1012(a) of Regulation M-A under the Exchange Act (or any similar communication to stockholders).

Efforts to Obtain Required Stockholder Votes

Zynga has also agreed to hold its special meeting and, subject to the qualifications described above, to use its reasonable best efforts to obtain the required Zynga vote. The Zynga board of directors has approved the merger agreement and declared the merger agreement and the transactions contemplated thereby, including the combination, advisable and in the best interests of Zynga and its stockholders, and has adopted resolutions directing that the merger agreement be submitted to the Zynga stockholders for their consideration. Zynga will not postpone or adjourn the Zynga special meeting without Take-Two’s consent, except (i) to the extent necessary to ensure that any supplement or amendment to this joint proxy statement/prospectus that the Zynga board of directors has determined (which determination shall be made as promptly as practicable) in good faith after consultation with outside legal counsel is required by applicable law, is properly disclosed, provided, that no such postponement or adjournment may be to a date that is after the earlier of (a) the fifth business day before the end date and (b) the tenth business day after the date of such distribution; (ii) to the extent necessary to obtain a quorum if, as of the time at which the Zynga special meeting is scheduled, there are insufficient shares of Zynga Common Stock represented to constitute a quorum; (iii) one time, for up to 10 calendar days, in order to permit the solicitation of additional proxies necessary to obtain the required Zynga vote or (iv) if the Take-Two special meeting has been adjourned or postponed by Take-Two in accordance with merger agreement, to the extent necessary to enable the Zynga special meeting and the Take-Two special meeting to be held concurrently. Notwithstanding the foregoing, Zynga will postpone or adjourn the Zynga special meeting (x) up to two times, for up to 10 calendar days each, if reasonably requested by Take-Two in order to permit the solicitation of additional proxies necessary to obtain the required Zynga vote (but in no event to a date later than five business days prior to the end date), or (y) if Take-Two makes a claim in good faith that any stockholder of Zynga who is a party to any Zynga voting agreement has breached such Zynga voting agreement in circumstances in which compliance would reasonably be expected to be required to obtain the required Zynga vote, in which case Zynga shall postpone or adjourn the Zynga special meeting until such claim is fully and finally resolved.

Take-Two has agreed to hold its special stockholders meeting and, subject to the qualifications described above, to use its reasonable best efforts to obtain stockholder approval of the Take-Two stock issuance. The Take-Two board of directors has approved the merger agreement and declared the merger agreement and the transactions contemplated thereby, including the Take-Two share issuance and the Take-Two charter amendment, advisable and in the best interests of Take-Two and its stockholders, and has adopted resolutions directing that the Take-Two stock issuance and the Take-Two charter amendment be submitted to the Take-Two stockholders for their consideration. Take-Two will not postpone or adjourn the Take-Two special meeting without Zynga’s consent, except (i) to the extent necessary to ensure that any supplement or amendment to this joint proxy statement/prospectus that the Take-Two board of directors has determined (which determination shall be made as promptly as practicable) in good faith after consultation with outside legal counsel is required by applicable law, is properly disclosed, provided, that no such postponement or adjournment may be to a date that is after the earlier of (a) the fifth business day before the end date and (b) the tenth business day after the date of such distribution; (ii) to the extent necessary to obtain a quorum if, as of the time at which the Zynga special meeting is scheduled, there are insufficient shares of Take-Two Common Stock represented to constitute a quorum; (iii) one time, for up to 10 calendar days, in order to permit the solicitation of additional proxies necessary to obtain the required Take-Two vote or (iv) if the Zynga special meeting has been adjourned or postponed by Zynga in accordance with merger agreement, to the extent necessary to enable the Take-Two special meeting and the Zynga special meeting to be held concurrently. Notwithstanding the foregoing, Take-Two will postpone or adjourn the Take-Two special meeting (x) up to two times, for up to 10 calendar days each, if reasonably requested by Take-Two in order to permit the solicitation of additional proxies necessary to obtain the required Zynga vote (but in no event to a date later than five business days prior to the end date), or (y) if Zynga makes a claim in good faith that any stockholder of Take-Two who is a party to the Take-Two voting agreement has breached the Take-Two voting agreement in circumstances in which compliance would reasonably be expected to be required to obtain the required Take-Two vote, in which case Take-Two shall postpone or adjourn the Take-Two special meeting until such claim is fully and finally resolved.

Efforts to Complete the Combination

Zynga and Take-Two have each agreed to:

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cooperate in all respects and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions;

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promptly inform each other of any communication received from, or given to, the Antitrust Division of the DOJ, the FTC, or any other governmental entity, by promptly providing copies to the other party of such written communications (subject to redaction of information as necessary to comply with contractual arrangements or to address reasonable privilege or confidentiality concerns, or where such information relates to valuation of Zynga, Take-Two or any of either party’s subsidiaries); and

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permit the other party, as applicable, to review any communication that it gives to, and consult with each other in advance of any meeting, substantive telephone call or conference with, the DOJ, the FTC, or any other governmental entity (subject to redaction of information as necessary to comply with contractual arrangements or to address reasonable privilege or confidentiality concerns, or where such information relates to valuation of Zynga, Take-Two or any of either party’s subsidiaries).

Each party has agreed to use its reasonable best efforts to (i) resolve any objections that may be asserted with respect to the transactions contemplated by the merger agreement under any regulatory law or (ii) avoid or have lifted, any decree, order or judgment that would restrict of the transactions contemplated by the merger agreement, so as to, in each case, enable the parties to close the contemplated transactions expeditiously. In furtherance, but without limiting the foregoing, Take-Two shall, and shall cause its subsidiaries to, (a) effect the sale, divesture, disposition, or license of any assets or businesses of Take-Two, Zynga or their respective subsidiaries, or agree to any other structural or conduct remedy, or (b) otherwise take any actions that would limit Take-Two’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets or businesses of Take-Two, Zynga or their respective subsidiaries or any interest therein (any such action, a “remedy”); provided, that Take-Two and its subsidiaries are not permitted to take, and Zynga and its subsidiaries are not required to take, any remedy with respect to Zynga or any of its subsidiaries the effectiveness of which is not conditioned on the closing of the combination occurring; provided, further, that none of Take-Two, Zynga or their respective subsidiaries is required to take any remedy that, individually or in the aggregate, would reasonably be expected to have a material adverse impact on (x) Take-Two and its subsidiaries, taken as a whole, after giving effect to the combination or (y) the benefits that are expected to be derived from the combination.

Additionally, each party has agreed to use its reasonable best efforts to obtain the expiration or termination of all waiting periods and all consents, waivers, authorizations and approvals of all third parties, including any governmental entities, necessary, proper or advisable for the consummation of the combination and to provide any notices to third parties required to be provided prior to the combination. However, without the prior written consent of Take-Two, Zynga may not incur any significant expense or liability, enter into any significant new commitment or agreement or agree to any significant modification to any contractual arrangement to obtain such consents or certificates, in each case, that would have a material adverse effect on its, or its subsidiaries’, business or operations taken as a whole, and, to the extent Take-Two provides any such written consent, any such approved payments or other consideration, or the provision of additional security, shall be the sole responsibility of Take-Two. Each of Take-Two, Zynga or their respective subsidiaries is prohibited from, without the prior written consent of the other parties hereto, entering into agreement or other commitment with a governmental entity to not close the combination before a date that is following the end date.

Each of Take-Two and Zynga has agreed to reasonably cooperate and use its reasonable best efforts to (i) seek each consent, approval, or waiver and (ii) prepare and deliver any notice, in each case as required to be delivered or obtained as a result of the consummation of the combination pursuant to any material contract that Zynga, Take-Two or any of their respective subsidiaries are a party; provided that Take-Two and Zynga are not required

to make any payment or incur any liability or obligation, or commit to make any payment or incur any liability or obligation, in connection with seeking any consent, approval or waiver contemplated by the foregoing clause (i)  the effectiveness of which is not conditioned on the closing of the combination occurring.

Governance Matters After the Combination

Take-Two has agreed to appoint, on or prior to the effective time, two members of the Zynga board of directors, selected by Zynga and approved by Take-Two, to the Take-Two of board of directors. Take-Two will be required to approve at least two of Zynga’s current directors and, if any of such Zynga-selected directors that have been approved by Take-Two are unable or unwilling to serve on the Take-Two board of directors, then Zynga may select prior to the effective time an alternative member of the Zynga board of directors who, subject to approval by Take-Two, will be appointed to the Take-Two board of directors as of the effective time. The two members of the Zynga board of directors selected by Zynga for appointment to the Take-Two board of directors pursuant to this provision of the merger agreement are Ellen Siminoff and William “Bing” Gordon. The appointment of Ms. Siminoff and Mr. Gordon remain subject to the review and approval by Take-Two’s Corporate Governance Committee and Board of Directors prior to the effective time.

Employee Benefits Matters

Take-Two has agreed that, from the effective time and for one (1) year thereafter, or the “continuation period,” each continuing employee of Zynga or its subsidiaries (each of whom we refer to as a “continuing employee”), for so long as such continuing employee remains employed by Take-Two or any subsidiary of Take-Two, will be eligible to receive employee benefits that are substantially comparable in the aggregate to either, at the sole discretion of Take-Two, (i) participation in Take-Two’s employee benefit plans and programs, including any defined contribution plan, bonus plan, profit sharing plan, medical plan, dental plan, life insurance plan, time off programs and disability plan (excluding any equity- or equity-based incentive plan and defined contribution plan), in each case to the same extent as similarly situated employees of Take-Two or its subsidiaries or (ii) continued participation in employee benefit plans, programs and policies of Zynga and its subsidiaries, which provide benefits that are no less favorable in the aggregate to the benefits (excluding equity- or equity-based compensation) provided to such continuing employee immediately before the closing date of the combination.

Any continuing employee (other than any employee who is a party to an individual employment agreement, contract or benefit plan that provides for the payment of severance) whose employment is terminated during the continuation period without “cause” (as defined in Zynga’s Change in Control Severance Benefit Plan) will be entitled (i) to cash severance benefits that are no less favorable and (ii) to welfare benefits that are no less favorable in the aggregate, than, in each case, the cash severance benefits and welfare benefits, respectively, if any, determined in accordance with the terms of Zynga’s separation guidelines, effective as of March 2020, subject to such continuing employee providing a timely and effective release of claims in favor of Take-Two, the first surviving corporation and their respective affiliates. Following the closing, Take-Two will assume and honor Zynga’s Change in Control Severance Benefit Plan in accordance with its terms.

Additionally, with respect to any Zynga employee benefit plan or Take-Two employee benefit plan in which any continuing employee first becomes eligible to participate on or after the date of completion of the combination (which we refer to as the new employee benefit plans), each continuing employee will, to the extent permitted by applicable law, receive full credit for the years of continuous service recognized by Zynga or its subsidiaries prior to the completion of the combination to the same extent as if it were service with Take-Two for purposes of (i) satisfying the service requirements for eligibility to participate in each such new employee benefit plan, (ii) vesting in any benefits under each such new employee benefit plan and (iii) calculating the level of benefits with respect to severance, non-statutory vacation, personal days off and any other non-statutory welfare-type benefits with respect to which a continuing Zynga employee may be eligible, where service is a factor in calculating benefits; provided, that none of the foregoing will apply with respect to defined benefit pension plans, benefit accrual, equity- or equity-based incentives or otherwise to the extent it would result in duplication of benefits or where such service was not recognized under the corresponding Zynga benefit plan.

With respect to any new employee benefit plan that is a welfare benefit plan in which any continuing employees first become eligible to participate on or after the effective time, Take-Two shall use reasonable best efforts to (i) cause to be waived any waiting periods, eligibility requirements, pre-existing condition limitations, physical examination requirements, evidence of insurability requirements, actively-at-work or similar requirements, except to the extent such requirements or conditions would apply under the analogous Zynga employee benefit plan in which such continuing employee was a participant or eligible to participate as of immediately prior to the completion of the combination, and (ii) give effect, in determining any deductibles, co-pay, co-insurance or maximum out-of-pocket limitations, to amounts paid by such continuing employees, prior to the effective time, under a Zynga employee benefit plan in which any such continuing employee was a participant as of immediately prior to the completion of the combination (to the same extent that such credit was given under such Zynga employee benefit plan prior to the completion of the combination) in satisfying such requirements during the plan year in which the closing of the combination occurs.

Zynga agreed to, as soon as reasonably practicable following the date of the merger agreement, provide Take-Two with the then-most recent calculations and reasonable back-up information relating to Sections 280G and 4999 of the Internal Revenue Code relating to the combination, including any non-compete valuations, once such calculations and information becomes available to Zynga following the date hereof and no later than ten (10) business days prior to the closing date of the combination. Zynga will not provide any tax indemnification or “gross up” to any employee of Zynga for any tax or penalty that becomes payable under Sections 280G and 4999 of the Internal Revenue Code.

Indemnification and Insurance

The merger agreement requires Take-Two to cause the surviving corporation and its subsidiaries, to the fullest extent permitted by law, (i) to indemnify each indemnified person to the same extent and under the same conditions and procedures as such indemnified person is entitled on the date the merger agreement under the organizational documents of Zynga (or the organizational documents of any subsidiary of Zynga) in connection with any claim, action, suit, proceeding or investigation based directly or indirectly (in whole or in part) on, or arising directly or indirectly (in whole or in part) out of, the fact that such person was an officer or director of Zynga or any of its subsidiaries, or is or was serving at the request of Zynga as an officer or director of another corporation, joint venture or other enterprise or general partner of any partnership or a trustee of any trust, whether pertaining to any matter arising before or after the effective time and (ii) to honor and fulfill, in all respects, the obligations of Zynga and its subsidiaries pursuant to any indemnification agreements between Zynga and any of its subsidiaries, on the one hand, and any indemnified person set forth on the Zynga disclosure schedule to the merger agreement or that use the same form in all material respects as the form of indemnification agreement filed by Zynga with the SEC.

The surviving corporation (i) may not amend, repeal or otherwise modify the exculpation, indemnification and advancement of expenses provisions of Zynga’s and any of its subsidiaries’ organizational documents or in any indemnification contracts of Zynga or its subsidiaries with any of their respective directors, officers or employees as in effect immediately prior to the effective time in each case in any manner that would adversely affect the rights thereunder of any individuals who at the effective time were current or former directors, officers or employees of Zynga or any of its subsidiaries.

The merger agreement requires Zynga to purchase a six-year “tail” prepaid officers’ and directors’ liability insurance policy prior to the completion of the combination covering and for the benefit of each indemnified person. Take-Two will not terminate such policy and will cause all obligations thereunder to be honored by it and the surviving corporation.

For purposes of the merger agreement, an “indemnified person” is any person who is now, or has been at any time prior to the effective time, (x) an officer or director of Zynga or any of its subsidiaries or (y) serving at the request of Zynga as an officer or director of another corporation, joint venture or other enterprise or general partner of any partnership or a trustee of any trust.

Treatment of Zynga Equity Awards

Options

At the effective time, each Zynga option that is outstanding and unexercised as of immediately prior to the effective time, whether or not then exercisable or vested, will be assumed by Take-Two and automatically converted into an option exercisable for shares of Take-Two common stock under the Take-Two equity plan, with the new number of shares underlying the options and exercise price determined after application of the equity award exchange ratio in accordance with the merger agreement. As of such conversion, each converted option shall be subject to the same terms and conditions (including vesting and exercisability terms) applicable to the corresponding Zynga option immediately prior to the effective time except as otherwise provided in the merger agreement.

Restricted Stock Units

At the effective time, each Zynga RSU Award that is outstanding immediately prior to the effective time, whether vested or unvested, will be assumed by Take-Two and automatically converted into a Take-Two restricted share unit award with respect to shares of Take-Two common stock under the Take-Two equity plan on the same terms and conditions as applied to the Zynga RSU Award as of immediately prior to the effective time, except as otherwise provided in the merger agreement, with the new number of shares underlying such award determined after application of the equity award exchange ratio in accordance with the merger agreement.

Performance Stock Units

At the effective time, each Zynga PSU Award that is outstanding immediately prior to the effective time, whether vested or unvested (and provided that any such award that as of immediately prior to the effective time no longer is subject to performance criteria shall be subject to the treatment described in the immediately preceding paragraph above for Zynga RSU Awards), will be assumed by Take-Two and automatically be converted into a Take-Two restricted share unit award with respect to shares of Take-Two common stock under the Take-Two equity plan on the same terms and conditions as applied to the Zynga PSU Award as of immediately prior to the effective time, with the new number of shares underlying such award determined after application of the equity award exchange ratio in accordance with the merger agreement.

Termination of the Zynga 2011 Employee Stock Purchase Plan and Certain Other Actions

Zynga will take all actions necessary or required to ensure that (i) no new offering period under the Zynga 2011 Employee Stock Purchase Plan (the “Zynga ESPP”) is authorized or commenced on or after the date of the merger agreement, (ii) any current offering period under the Zynga ESPP will expire in accordance with its terms (but no later than immediately prior to the effective time of the merger), (iii) any current offering period is shortened and adjusted to give effect to any earlier termination as previously described, which adjusted offering period will be treated as a fully effective and completed offering period under the Zynga ESPP, (iv) each Zynga ESPP participant’s accumulated contributions under the Zynga ESPP will be used to purchase shares of Zynga common stock as of the end of the current offering period, referred to as the “final exercise date,” and (v) the Zynga ESPP will terminate in its entirety at the effective time of the merger.

Zynga will take all actions necessary to terminate Zynga’s stock incentive plans, to ensure that no person will have any rights under the plans except for the payments in respect of outstanding award described above. Take-Two will take all action necessary to reserve for issuance a sufficient number of shares of Take-Two common stock to satisfy its obligations in respect of Zynga equity awards.

Other Covenants and Agreements

The merger agreement contains certain other covenants and agreements, including covenants relating to:

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cooperation between Zynga and Take-Two in the preparation of this joint proxy statement/prospectus;

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confidentiality and access by each party to certain information about the other party during the period prior to the effective time;

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cooperation between Zynga and Take-Two in the defense or settlement of any stockholder litigation relating to the combination;

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maintenance of adequate insurance by each of Zynga and Take-Two;

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cooperation between Zynga and Take-Two in connection with public announcements;

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Zynga’s agreement not to adopt or approve a stockholder rights plan, “poison pill” or other similar agreement or arrangement or any anti-takeover provision in its organizational documents that is, as of the consummation of the combination, applicable to Take-Two (or its affiliates), the combination or the other transactions;

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Take-Two’s agreement to file Take-Two charter amendment, subject to approval of the Take-Two charter amendment proposal;

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Take-Two’s agreement to effect resolutions by its board of directors causing any dispositions of shares of Zynga common stock resulting from the combination, and any acquisitions of Take-Two common stock resulting from the combination, by certain officers and directors of Zynga who are subject to the reporting requirements of Section 16(a) of the Exchange Act, to be exempt from Section 16(b) of the Exchange Act, subject to the receipt of information related thereto from Zynga;

•

neither party’s knowingly taking any action or failing to take any action, which action or failure to act would cause the combination to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code; and

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Zynga’s and Take-Two’s use of their respective reasonable best efforts to (i) provide the representations of their respective officers required in connection with the issuance of the opinions of, respectively, Wilson Sonsini Goodrich & Rosati, counsel to Zynga, and Willkie Farr & Gallagher LLP, counsel to Take-Two, that the combination will be treated as a “reorganization” within the meaning of Section 368(a) of the Code and (ii) obtain the respective opinions referred to in clause (i) of this bullet.

Additionally, the merger agreement provides that Take-Two is obligated to use its reasonable best efforts to obtain the financing on the terms and conditions contemplated by the commitment letter and the fee letter executed in connection with the financing, including:

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complying with, maintaining the effectiveness of and enforcing the commitment letter and the fee letter;

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negotiating agreements with respect to the financing on the terms and subject to the conditions contained in the commitment letter and the fee letter; and

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satisfying, on a timely basis (or obtaining the waiver of), all conditions to the funding of the financing set forth in the commitment letter, the fee letter and any definitive agreements executed in connection therewith.

Subject to certain specified exceptions and conditions, Zynga is obligated to use its reasonable best efforts to provide, and to use its reasonable best efforts to cause its subsidiaries and representatives to provide, all cooperation reasonably requested by Take-Two in connection with the debt financing, including:

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using reasonable best efforts to provide audited consolidated financial statements of Zynga covering the three fiscal years immediately preceding the closing of the combination for which audited consolidated financial statements are then currently available;

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using reasonable best efforts to provide unaudited financial statements for any regular quarterly interim fiscal period or periods of Zynga ended after the date of the most recent audited financial statements and at least forty-five (45) days prior to the closing of the combination;

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using reasonable best efforts to provide all documentation and other information required by governmental entities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act of 2001, and beneficial ownership regulations, but in each case, solely as relating to Zynga and its subsidiaries to the extent requested by Take-Two and its financing sources at least ten (10) business days prior to the closing of the combination;

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using reasonable best efforts to cause Zynga’s and its subsidiaries’ senior officers and other representatives to participate in meetings and calls, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies, investors and prospective lenders on reasonable advance notice to the extent practicable;

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using reasonable best efforts to assist with the preparation of appropriate and customary materials for rating agency presentations, offering and syndication documents, bank information memoranda, business projections, customary pro forma financial statements reflecting the combination and financing;

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using reasonable best efforts to assist with the preparation of any pledge, security and other collateral documents, any loan agreement, currency or interest hedging agreement, other definitive financing documents on terms reasonably satisfactory to Take-Two, or other certificates, resolutions, consents or documents as may be reasonably requested by Take-Two and usual and customary for transactions of the type contemplated by the commitment letter and the fee letter;

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using reasonable best efforts to facilitate the pledging of collateral;

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using reasonable best efforts to facilitate the pay-off of any existing indebtedness of Zynga and its subsidiaries and to arrange for the receipt of customary pay-off documentation evidencing the satisfaction and discharge of such existing indebtedness and the release of related liens and termination of security interests with respect thereto;

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using reasonable best efforts to furnish to Take-Two, Merger Sub 1 and Merger Sub 2 and the financing sources, as promptly as reasonably practicable, as promptly as reasonably practicable, with all required information;

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using reasonable best efforts to cause the independent auditors of Zynga to assist and cooperate with Take-Two in connection with the financing, including by providing consent to offering memoranda, registration statements and/or prospectus that include or incorporate Zynga’s consolidated financial information and their reports thereon, and customary comfort letters (including “negative assurance” and change period comfort) with respect to financial information relating to Zynga and its subsidiaries;

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using reasonable best efforts to cooperate with the financing sources’ due diligence requests and review, to the extent reasonably requested in connection with the financing;

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using reasonable best efforts to request that Zynga’s independent accountants cooperate with and assist Take-Two in preparing customary and appropriate information packages and offering and private placement memoranda or other offering materials as the financing sources may reasonably request for use in connection with the offering and/or syndication of debt securities, loan participations and other matters contemplated with respect to the financing, in obtaining third party consents in connection with such financing, and in extinguishing existing indebtedness for borrowed money of Zynga and its subsidiaries and releasing liens securing such existing indebtedness, in each case to take effect at the effective time; and

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using reasonable best efforts to take such actions as are reasonably requested by Take-Two or the financing sources to facilitate the satisfaction of all conditions precedent to obtaining the financing to the extent within the control of Zynga (including delivery of the stock and other equity certificates of Zynga’s subsidiaries to Take-Two).

Take-Two is obligated to reimburse Zynga for reasonable out-of-pocket fees it incurs in connection with such cooperation.

Conditions to Completion of the Combination

The obligations of each of Zynga and Take-Two to effect the combination are subject to the satisfaction, or waiver, of the following conditions:

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the approval and adoption of the merger agreement and approval of the combination by the affirmative vote of the holders of a majority of the outstanding shares of Zynga common stock entitled to vote thereon;

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the approval of the Take-Two share issuance by the affirmative vote of a majority of the votes cast on the share issuance as well as the affirmative vote of the holders of a majority of the stock having voting power present in person or represented by proxy at the Take-Two special meeting, and the approval and adoption of the Take-Two charter amendment by the affirmative vote of the holders of a majority of the outstanding shares of Take-Two common stock entitled to vote thereon;

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the absence of any order, injunction or regulation by a court or other governmental entity that makes prevents or materially impairs the consummation of the combination;

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the consents, approvals or waivers of governmental entities that are required pursuant to the HSR Act and the consent, waiver, authorization or approval of the applicable antitrust regulatory authority in certain specified non-U.S. jurisdictions having been obtained;

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the Take-Two charter amendment having been duly filed with the Secretary of State of Delaware;

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the shares of Take-Two common stock to be issued pursuant to the merger having been approved for listing on the NASDAQ; and

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the effectiveness of the registration statement of which this joint proxy statement/prospectus forms a part and the absence of a stop order or proceedings threatened or initiated by the SEC for that purpose.

In addition, the obligations of Take-Two, Merger Sub 1 and Merger Sub 2 to effect the combination are subject to the satisfaction, or waiver, of the following additional conditions:

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the representations and warranties of Zynga relating to (i) organization, (ii) authorization and validity of the merger agreement, (iii) certain capitalization and related matters, (iv) no brokers, (v) board approval, (vi) the requisite stockholder vote needed by Zynga and (v) stock ownership being true and correct in all material respects as of the date of the merger agreement and as of the closing date of the combination (other than those representations and warranties that were made only as of an earlier date, which need only be true and correct as of that date);

•

the representations and warranties of Zynga relating to certain capitalization and related matters being true and correct in all respects (except for such inaccuracies as are de minimis in the aggregate), as of the date of the merger agreement and as of the closing date of the combination (other than those representations and warranties that were made only as of an earlier date, which need only be true and correct as of that date);

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the representations and warranties of Zynga relating to the absence of a material adverse effect since December 31, 2020 being true and correct in all respects, as of the date of the merger agreement and as of the closing date of the combination;

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all other representations and warranties of Zynga being true and correct both as of the date of the merger agreement and as of the closing date of the combination (other than those representations and warranties that were made only as of an earlier date, which need only be true and correct as of that date), other than where the failure of these representations and warranties to be true and correct (without giving effect to any materiality qualifications contained in such representations and warranties) does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Zynga and its subsidiaries, taken as a whole;

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Zynga’s having performed or complied with, in all material respects, all of its agreements and covenants under the merger agreement at or prior to the consummation of the combination;

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Take-Two’s receipt of a certificate executed by an executive officer of Zynga certifying as to the satisfaction of the conditions described in the preceding bullets;

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no material adverse effect on Zynga having occurred after the date of the merger agreement; and

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Take-Two’s receipt of a written opinion from Willkie, Farr & Gallagher LLC to the effect that the combination will be treated as a “reorganization” within the meaning of Section 368(a) of the Code, provided that this condition may not be waived after receipt of the approval of the combination by the stockholders of Take-Two without further stockholder approval.

In addition, the obligations of Zynga to effect the combination are subject to the satisfaction, or waiver, of the following additional conditions:

•

the representations and warranties of Take-Two, Merger Sub 1 and Merger Sub 2 relating to (i) organization, (ii) authorization and validity of the merger agreement, (iii) certain capitalization and related matters, (iv) no brokers, (v) state takeover statutes, (vi) board approval, (vii) the requisite stockholder vote needed by Take-Two and (viii) stock ownership being true and correct in all material respects as of the date of the merger agreement and as of the closing date of the combination (other than those representations and warranties that were made only as of an earlier date, which need only be true and correct as of that date);

•

the representations and warranties of Take-Two, Merger Sub 1 and Merger Sub 2 relating to certain capitalization and related matters being true and correct in all respects (except for such inaccuracies as are de minimis in the aggregate), as of the date of the merger agreement and as of the closing date of the combination (other than those representations and warranties that were made only as of an earlier date, which need only be true and correct as of that date);

•

the representations and warranties of Take-Two, Merger Sub 1 and Merger Sub 2 relating to the absence of a material adverse effect since March 31, 2021 being true and correct in all respects, as of the date of the merger agreement and as of the closing date of the combination;

•

all other representations and warranties of Take-Two, Merger Sub 1 and Merger Sub 2 being true and correct both as of the date of the merger agreement and as of the closing date of the combination (other than those representations and warranties that were made only as of an earlier date, which need only be true and correct as of that date), other than where the failure of these representations and warranties to be true and correct (without giving effect to any materiality qualifications contained in such representations and warranties) does not have, and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Take-Two and its subsidiaries, taken as a whole;

•

Take-Two’s having performed or complied with, in all material respects, all of its agreements and covenants under the merger agreement at or prior to the consummation of the combination;

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Zynga’s receipt of a certificate executed by an executive officer of Take-Two certifying as to the satisfaction of the conditions described in the preceding bullets;

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no material adverse effect on Take-Two having occurred after the date of the merger agreement; and

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Zynga’s receipt of a written opinion from Wilson Sonsini Goodrich & Rosati to the effect that the combination will be treated as a “reorganization” within the meaning of Section 368(a) of the Code, provided that this condition may not be waived after receipt of the approval of the combination by the stockholders of Zynga without further stockholder approval.

Termination of the Merger Agreement

The merger agreement may be terminated and the combination abandoned at any time prior to the effective time, and, except as described below, whether before or after the receipt of the required stockholder approvals, under the following circumstances:

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by mutual written consent of Zynga and Take-Two;

•

by either Zynga or Take-Two:

•

if the combination is not consummated before the end date; provided, however, that this right to terminate the merger agreement will not be available to any party whose breach of any provision of the merger agreement has been the primary cause of the failure to close by the end date;

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if any governmental entity issues a final and non-appealable order, decree or ruling or takes any other action that has the effect of permanently restraining, enjoining or otherwise prohibiting or making illegal the consummation of the combination or any other transaction contemplated by the merger agreement, provided, that the party seeking to terminate pursuant to this right used its reasonable best efforts to remove such restraint or prohibition; and that this right to terminate the merger agreement will not be available to any party whose breach of any provision of the merger agreement results in the imposition of such order, decree or ruling or the failure of such order, decree or ruling to be resisted, resolved or lifted;

•

if the required Zynga vote and/or the required Take-Two vote is not obtained; provided, however, that this right to terminate the merger agreement will not be available to any party whose breach of certain provisions of the merger agreement relating to the preparation and filing of this joint proxy statement/prospectus resulted in the failure of the applicable requisite vote to be obtained;

•

by Take-Two:

•

prior to the Zynga special meeting, if (i) there shall have been a Zynga change of recommendation or the Zynga board of directors shall have approved or recommended a Zynga superior proposal (or the Zynga board of directors resolves to do any of the foregoing), (ii) Zynga or any of its subsidiaries shall have entered into any definitive acquisition agreement, merger agreement or similar definitive agreement to consummate a Zynga alternative acquisition proposal, whether or not permitted by the merger agreement or (iii) Zynga is in intentional breach of any of its obligations under the merger agreement regarding third-party acquisition proposals as described under the section titled “—Go-Shop Period; Restrictions on Solicitations of Other Offers”;

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upon a breach of any representation, warranty, covenant or agreement on the part of Zynga contained in the merger agreement such that the relevant conditions to Take-Two’s obligations to complete the combination would not be satisfied and that either (i) the breach is not reasonably capable of being cured or (ii) if such breach is reasonably capable of being cured, such breach has not been cured prior to the earlier of (a) thirty (30) days following notice of such breach or (b) the end date. However, Take-Two does not have this right to terminate the merger agreement if it is then in material breach of any of its representations, warranties, covenants or agreements contained in the merger agreement;

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by Zynga:

•

prior to receipt of the required Zynga vote, if the Zynga board of directors shall have authorized Zynga to enter into an alternative acquisition agreement with respect to a Zynga superior proposal; provided that, substantially concurrently with and as a condition to such termination, Zynga enters into such Zynga alternative acquisition agreement and pays (or causes to be paid) to Take-Two the termination fee;

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upon a breach of any representation, warranty, covenant or agreement on the part of Take-Two, Merger Sub 1 or Merger Sub 2 contained in the merger agreement such that the relevant conditions to Zynga’s obligations to complete the combination would not be satisfied and that either (i) the breach is not reasonably capable of being cured or (ii) if such breach is reasonably capable of being cured, such breach has not been cured prior to the earlier of (a) thirty (30) days following notice of such breach or (b) the end date; provided, however, Zynga does not have this right to terminate the merger agreement if it is then in material breach of any of its representations, warranties, covenants or agreements contained in the merger agreement; or

•

prior to the Take-Two special meeting, if (i) there shall have been a Take-Two change of recommendation or the Take-Two board of directors shall have approved or recommended a Take-Two superior proposal (or the Take-Two board of directors resolves to do any of the foregoing), (ii) Take-Two or any of its subsidiaries shall have entered into any definitive acquisition agreement, merger agreement or similar definitive agreement to consummate a Take-Two alternative acquisition proposal, whether or not permitted by the merger agreement or (iii) Take-Two is in intentional breach of its obligations under the merger agreement regarding third-party acquisition proposals as described under the section titled “—Go-Shop Period; Restrictions on Solicitations of Other Offers.”

Termination Fees and Expenses; Liability for Breach

Zynga will be obligated to pay a termination fee of $550,000,000 (and reimbursement for expenses of enforcing the right to receive the termination fee) to Take-Two if:

•

Take-Two terminates the merger agreement because, prior to the Zynga special meeting, (i) there shall have been a Zynga change of recommendation or the Zynga board of directors shall have approved or recommended a Zynga superior proposal (or the Zynga board of directors resolves to do any of the foregoing), (ii) Zynga or any of its subsidiaries shall have entered into any definitive acquisition agreement, merger agreement or similar definitive agreement to consummate a Zynga alternative acquisition proposal, whether or not permitted by the merger agreement or (iii) Zynga is in intentional breach of any of its obligations under the merger agreement regarding third-party acquisition proposals as described under the section titled “—Go-Shop Period; Restrictions on Solicitations of Other Offers”;

•

(i) Zynga or Take-Two terminates the merger agreement because the required Zynga vote was not obtained, (ii) at or prior to the time of the Zynga special meeting there is publicly disclosed or announced a bona fide written Zynga alternative acquisition proposal that has not been publicly withdrawn at least five business days prior to the time of the Zynga special meeting and (iii) within twelve (12) months following the termination of the merger agreement, Zynga consummates a Zynga alternative acquisition proposal, or enters into a definitive agreement to consummate a Zynga alternative acquisition proposal and the transaction contemplated thereby is subsequently consummated (except that, for this purpose, each reference to “more than 20%” in the definition of “Zynga alternative acquisition proposal” is deemed to be a reference to “more than 50%”);

•

(i) Take-Two terminates the merger agreement (a) because of a failure of the closing of the combination to occur on or before the end date and such failure was primarily attributable to a breach of any provision of the merger agreement by Zynga (other than Zynga’s obligations to cooperate with Take-Two’s efforts to obtain financing in connection with the combination) or (b) because of a breach by Zynga of a representation, warranty or covenant contained in the merger agreement such that the relevant conditions to Take-Two’s obligations to complete the combination would not be satisfied, (ii) at or prior to the time of such termination there shall have been publicly disclosed or announced a bona fide written Zynga alternative acquisition proposal that has not been publicly withdrawn at least five business days prior to the time of such termination and (iii) within twelve (12) months following the termination of the merger agreement, Zynga consummates a Zynga alternative acquisition proposal,

or enters into a definitive agreement to consummate a Zynga alternative acquisition proposal and the transaction contemplated thereby is subsequently consummated (except that, for this purpose, each reference to “more than 20%” in the definition of “Zynga alternative acquisition proposal” is deemed to be a reference to “more than 50%”); or

•

Zynga terminates the merger agreement because, prior to the receipt of the required Zynga vote and on or after the Zynga no-shop period start date, the Zynga board of directors authorizes Zynga to enter into a definitive acquisition agreement with respect to a Zynga superior proposal.

Additionally, if Zynga had terminated the merger agreement because prior to the receipt of the required Zynga vote and prior to the Zynga no-shop period start date, the Zynga board of directors had authorized Zynga to enter into a definitive acquisition agreement with respect to a Zynga superior proposal, Zynga would have been required to pay to Take-Two a termination fee $400,000,000 (and reimbursement for expenses of enforcing the right to receive such fee).

Take-Two will be obligated to pay a termination fee of $550,000,000 (and reimbursement for expenses of enforcing the right to receive the termination fee) to Zynga if:

•

Zynga terminates the merger agreement because, prior to the Take-Two special meeting, (i) the Take-Two board of directors withdraws, or modifies or amends in an adverse manner, its approval or recommendation of the merger agreement or the combination, (ii) Take-Two or any of its subsidiaries enter into any definitive agreement to consummate a Take-Two alternative acquisition proposal or (iii) Take-Two is in intentional breach of its obligations under the merger agreement regarding third-party acquisition proposals as described under the section titled “—Go-Shop Period; Restrictions on Solicitations of Other Offers”;

•

(i) Zynga or Take-Two terminates the merger agreement because the required Take-Two vote was not obtained, (ii) at or prior to the time of the Take-Two special meeting there is publicly disclosed or announced a bona fide written Take-Two alternative acquisition proposal that has not been publicly withdrawn at least five business days prior to the time of the Take-Two special meeting and (iii) within twelve (12) months following the termination of the merger agreement, Take-Two consummates a Take-Two alternative acquisition proposal, or enters into a definitive agreement to consummate a Take-Two alternative acquisition proposal and the transaction contemplated thereby is subsequently consummated (except that, for this purpose, each reference to “more than 20%” in the definition of “Take-Two alternative acquisition proposal” is deemed to be a reference to “more than 50%”); or

•

(i) Zynga terminates the merger agreement (a) because of a failure of the closing of the combination to occur on or before the end date and such failure was primarily attributable to a breach of any provision of the merger agreement by Take-Two or (b) because of a breach by Take-Two, Merger Sub 1 or Merger Sub 2 of a representation, warranty or covenant contained in the merger agreement the relevant conditions to Zynga’s obligations to complete the combination would not be satisfied, (ii) at or prior to the time of such termination there shall have been publicly disclosed or announced a bona fide written Take-Two alternative acquisition proposal that has not been publicly withdrawn at least five business days prior to the time of such termination and (iii) within twelve (12) months following the termination of merger agreement, Take-Two consummates a Take-two alternative acquisition proposal, or enters into a definitive agreement to consummate a Take-Two alternative acquisition proposal and the transaction contemplated thereby is subsequently consummated (except that, for this purpose, each reference to “more than 20%” in the definition of “Take-Two alternative acquisition proposal” is deemed to be a reference to “more than 50%”).

Additionally, if Zynga or Take-Two terminates the merger agreement because the required Take-Two vote was not obtained and at the time of such termination the required Zynga vote was already obtained, the Take-Two shall pay to Zynga an expense reimbursement of $50,000,000. Further, if Zynga or Take-Two terminates the merger agreement because the required Zynga vote was not obtained and at the time of such termination the

required Take-Two vote was already obtained, the Zynga shall pay to Take-Two an expense reimbursement of $50,000,000.

Except as discussed above, each party shall pay all fees and expenses incurred by it in connection with the combination and the other transactions contemplated by the merger agreement; provided, however that Zynga and Take-Two will share equally all fees and expenses in relation to the filing with the SEC of this joint proxy statement/prospectus.

Each party will have the right to pursue damages and other relief for the other party’s fraud or intentional breach of any covenant or agreement in the merger agreement.

Amendments, Extensions and Waivers

The merger agreement may be amended by the parties at any time before or after the receipt of the approvals of the Zynga or Take-Two stockholders required to consummate the combination. However, after any such stockholder approval, there may not be, without further approval of Take-Two’s stockholders or Zynga’s stockholders, as applicable, any amendment of the merger agreement for which applicable law requires further stockholder approval. Further, there may not be, without approval of the financing sources, any amendment to the provisions of the merger agreement of which the financing sources are an intended third party beneficiary, where such amendment would adversely affect the material interests of a financing source.

At any time prior to the effective time, any party may (i) extend the time for performance of any obligations or other acts of the other party, (ii) waive any inaccuracies in the representations and warranties of the other party contained in the merger agreement and (iii) waive compliance by the other party with any of the agreements or conditions contained in the merger agreement.

No Third Party Beneficiaries

While the merger agreement is not intended to confer upon you or any person other than Zynga, Take-Two, Merger Sub 1 and Merger Sub 2 any rights or remedies, it provides limited exceptions, including, following the closing of the combination, the right of Zynga’s stockholders to receive the merger consideration and the rights of holders of Zynga equity awards to receive certain consideration or, following the termination of the merger agreement, the right of Zynga to seek damages on behalf of Zynga stockholders, which may include damages based on a decrease in share value or lost premium. Zynga’s directors and officers will continue to have indemnification and liability insurance coverage after the completion of the combination. Additionally, the merger agreement confers upon the financing sources certain rights, including the rights to enforce (i) the agreement by Zynga and Take-Two to submit to the jurisdiction of the courts of the State of Delaware and the Delaware Court of Chancery and in certain situations the Federal courts of the United States of America located in the State of Delaware in respect of the interpretation and enforcement of the provisions of the merger agreement and the documents referred to therein and (ii) the waiver by each of Zynga, Take-Two, Merger Sub 1 and Merger Sub 2 of a jury trial in any dispute arising out of or relating to the commitment letter or the financing.

Specific Performance

The parties agreed in the merger agreement that irreparable damage would occur in the event that any of the provisions of the merger agreement were not performed in accordance with their specific terms or were otherwise breached, and that no adequate remedy at law would exist for such occurrence. The parties agreed that they shall be entitled to seek an injunction or injunctions to prevent breaches of the merger agreement and to enforce specifically the performance of terms and provisions of the merger agreement without proof of actual damages. The parties further agreed not to assert that a remedy at law would be adequate.