This joint proxy statement/prospectus is being provided to Zynga stockholders in connection with the solicitation of proxies by the Zynga board of directors for use at the Zynga special meeting and at any adjournments or postponements thereof. Zynga stockholders are encouraged to read this entire document carefully, including its annexes and the documents incorporated by reference herein, for more detailed information regarding the merger agreement and the transactions contemplated thereby.
Date, Time and Place of the Zynga Special Meeting
The Zynga special meeting is scheduled to be held virtually via live webcast on May 19, 2022, beginning at 8:00 a.m., Pacific Time.
The Zynga special meeting will be held solely by means of remote communication via live webcast. There will not be a physical location. In light of continuing public health and travel concerns arising from the coronavirus (COVID-19) outbreak, Zynga believes hosting a virtual meeting helps ensure the health and safety of its stockholders, the Zynga board of directors and Zynga management. Zynga stockholders will be able to virtually attend and vote at the Zynga special meeting by visiting https://web.lumiagm.com/287175525, password: zynga2022 (case sensitive) which is referred to as the “Zynga special meeting website.”
Matters to Be Considered at the Zynga Special Meeting
The purpose of the Zynga special meeting is to consider and vote on each of the following proposals, each of which is further described in this joint proxy statement/prospectus:
| • | Zynga Proposal 1—Adoption of the Merger Agreement: To adopt the merger agreement; |
| • | Zynga Proposal 2—Approval, on an Advisory Non-Binding Basis, of Certain Merger- Related Compensatory Arrangements with Zynga’s Named Executive Officers: To approve, on a non-binding advisory basis, the compensation that may be paid or become payable to Zynga named executive officers that is based on or otherwise relates to the transactions contemplated by the merger agreement; and |
| • | Zynga Proposal 3—Adjournment of the Zynga Special Meeting: To approve the adjournment of the Zynga special meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Zynga special meeting to approve the Zynga merger proposal. |
Approval of the Zynga merger proposal by Zynga stockholders is a condition to the combination. Approval of the advisory Zynga compensation proposal and the Zynga adjournment proposal are not conditions to the obligation of either Take-Two or Zynga to complete the combination.
Only business within the purposes described in the Zynga special meeting notice may be conducted at the Zynga special meeting.
Recommendation of the Zynga Board of Directors
After careful consideration, the Zynga board of directors unanimously: (i) determined that the merger agreement, the combination and the other transactions contemplated by the merger agreement were fair to, advisable and in the best interests of Zynga and its stockholders; (ii) adopted and approved the merger agreement, the combination and the other transactions contemplated by the merger agreement; and (iii) recommended that Zynga stockholders adopt the merger agreement. Accordingly, the Zynga board of directors unanimously recommends that Zynga stockholders vote “FOR” the Zynga merger proposal, “FOR” the Zynga compensation
proposal and “FOR” the Zynga adjournment proposal. See the section titled “The Combination—Zynga’s Reasons for the Combination and Recommendation of the Zynga Board of Directors.”
The Zynga board of directors unanimously recommends that Zynga stockholders vote:
| • | Zynga Proposal 1: “FOR” the Zynga merger proposal; |
| • | Zynga Proposal 2: “FOR” the Zynga compensation proposal; and |
| • | Zynga Proposal 3: “FOR” the Zynga adjournment proposal. |
Record Date for the Zynga Special Meeting and Voting Rights
The record date to determine Zynga stockholders who are entitled to receive notice of and to vote at the Zynga special meeting or any adjournments or postponements thereof is April 4, 2022. At the close of business on the Zynga record date, there were 1,137,276,459 shares of Zynga common stock issued and outstanding and entitled to vote at the Zynga special meeting.
Each Zynga stockholder is entitled to one vote on each proposal for each share of Zynga common stock held of record at the close of business on the Zynga record date. Only Zynga stockholders of record at the close of business on the Zynga record date are entitled to receive notice of and to vote at the Zynga special meeting and any and all adjournments or postponements thereof.
Quorum; Abstentions and Broker Non-Votes
A quorum of Zynga stockholders is necessary to conduct business at the Zynga special meeting. The presence, in person or by proxy of the holders of a majority of the voting power of the shares of Zynga common stock entitled to vote at the Zynga special meeting will constitute a quorum. Shares of Zynga common stock present at the Zynga special meeting by virtual attendance via the Zynga special meeting website or represented by proxy and entitled to vote, including shares for which a Zynga stockholder directs an “abstention” from voting, will be counted for purposes of determining a quorum. However, because all of the proposals for consideration at the Zynga special meeting are considered “non-routine” matters, shares held in “street name” will not be counted as present for the purpose of determining the existence of a quorum unless the Zynga stockholder provides their bank, broker or other nominee with voting instructions for at least one of the proposals at the Zynga special meeting. If a quorum is not present, the Zynga special meeting will be adjourned or postponed until the holders of the number of shares of Zynga common stock required to constitute a quorum attend.
Under Nasdaq rules, banks, brokers or other nominees who hold shares in “street name” on behalf of the beneficial owner of such shares have the authority to vote such shares in their discretion on certain “routine” proposals when they have not received voting instructions from the beneficial owners. However, banks, brokers or other nominees are not allowed under Nasdaq rules to exercise their voting discretion with respect to matters that are “non-routine.” This can result in a “broker non-vote,” which occurs on a proposal when (i) a bank, broker or other nominee has discretionary authority to vote on one or more “routine” proposals to be voted on at a meeting of stockholders, but is not permitted to vote on other “non-routine” proposals without instructions from the beneficial owner of the shares, and (ii) the beneficial owner fails to provide the bank, broker or other nominee with voting instructions on a “non-routine” matter. All of the proposals for consideration at the Zynga special meeting are considered “non-routine” matters, and banks, brokers or other nominees will not have discretionary authority to vote on any matter before the Zynga special meeting. As a result, Zynga does not expect any broker non-votes at the Zynga special meeting and if you hold your shares of Zynga common stock in “street name,” your shares will not be represented and will not be voted on any matter unless you affirmatively instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instructions provided by your bank, broker or other nominee. It is therefore critical that you cast your vote by instructing your bank,
broker or other nominee on how to vote. Brokers will not be able to vote on any of the proposals before the Zynga special meeting unless they have received voting instructions from the beneficial owners.
The vote required to approve each of the proposals listed below assumes the presence of a quorum at the Zynga special meeting. As described above, Zynga does not expect there to be any broker non-votes at the Zynga special meeting.
| Proposal |
Required Vote |
Effects of Certain Actions | ||
| Zynga Proposal 1: Zynga merger proposal | Approval requires the affirmative vote of a majority of the outstanding shares of Zynga common stock entitled to vote at the close of business on the Zynga record date. | The failure to vote, the failure to instruct your brokerage firm, bank, dealer or other similar organization, trustee, or nominee to vote shares held in “street name” on the Zynga merger proposal or an abstention from voting will have the same effect as a vote “AGAINST” the Zynga merger proposal. | ||
| Zynga Proposal 2: Zynga compensation proposal | Approval requires the affirmative vote of a majority of the voting power of the Zynga common stock present, including by remote communication, or represented by proxy at the Zynga special meeting. | Any shares not present or represented by proxy (including due to the failure of a Zynga stockholder who holds shares in “street name” through a bank, broker or other nominee to provide voting instructions with respect to any proposals at the Zynga special meeting to such bank, broker or other nominee) will have no effect on the outcome of the Zynga compensation proposal, provided that a quorum is otherwise present. An abstention or other failure of any shares present or represented by proxy to vote on the Zynga compensation proposal will have the same effect as a vote “AGAINST” the Zynga compensation proposal. In addition, if a Zynga stockholder who holds shares in “street name” through a bank, broker or other nominee provides voting instructions for one or more other proposals, but not for the Zynga compensation proposal, it will have the same effect as a vote “AGAINST” the Zynga compensation proposal. | ||
| Zynga Proposal 3: Zynga adjournment proposal | Approval requires the affirmative vote of a majority of the voting power of the Zynga common stock present, including by remote communication, or represented by proxy at the Zynga special meeting. | Any shares not present or represented by proxy (including due to the failure of a Zynga stockholder who holds shares in “street name” through a bank, broker or other nominee to provide voting instructions with respect to any proposals at the Zynga special meeting to such bank, broker or other nominee) will have no effect on the outcome of the Zynga adjournment proposal, provided that a quorum is otherwise present. An abstention or other failure of any shares present or represented by | ||
| Proposal |
Required Vote |
Effects of Certain Actions | ||
| proxy to vote on the Zynga adjournment proposal will have the same effect as a vote “AGAINST” the Zynga adjournment proposal. In addition, if a Zynga stockholder who holds shares in “street name” through a bank, broker or other nominee provides voting instructions for one or more other proposals, but not for the Zynga adjournment proposal, it will have the same effect as a vote “AGAINST” the Zynga adjournment proposal. |
Vote of Zynga Directors and Executive Officers
As of April 4, 2022, the Zynga record date, Zynga directors and executive officers owned and were entitled to vote in the aggregate 61,763,023 shares of Zynga common stock (excluding shares underlying Zynga equity awards), and 61,840,524 shares of Zynga common stock were covered by the voting agreements entered into by and among Zynga’s executive officers and directors (and certain of their respective affiliates and transferees), solely in their capacity as stockholders of Zynga, described in the section titled “Voting Agreements,” which represented 5.4% of the Zynga common stock issued and outstanding on the Zynga record date. For more information regarding the Zynga voting agreements, see the section titled “Voting Agreements.”
Pursuant to the voting agreements, Zynga currently expects that all Zynga directors and Zynga officers will vote their shares “FOR” the Zynga merger proposal, “FOR” the Zynga compensation proposal and “FOR” the Zynga adjournment proposal. See the section titled “Interests of Zynga Directors and Executive Officers in the Combination” in this joint proxy statement/prospectus and the arrangements described in Zynga’s Definitive Proxy Statement on Schedule 14A for Zynga’s 2021 annual meeting of stockholders, filed with the SEC on May 17, 2021, which is incorporated by reference in this joint proxy statement/prospectus.
Stockholders of Record
If you are a Zynga stockholder of record, you may vote at the Zynga special meeting by proxy through the internet, by mail, or by virtually attending and voting at the Zynga special meeting via the Zynga special meeting website, as described below.
| • | By Internet Before the Meeting: To vote via the Internet, go to www.voteproxy.com to complete an electronic proxy card. You will be asked to provide the 11-digit Voter Control Number issued by American Stock Transfer & Trust Company LLC included with your proxy materials. Your vote must be received before 11:59 p.m. Eastern Time on May 18, 2022 to be counted. If you vote via the Internet, you do not need to return a proxy card by mail. |
| • | By Mail: To vote by mail using the proxy card, you need to complete, date and sign the proxy card and return it promptly by mail in the envelope provided so that it is received in sufficient time to be processed before the closing of the voting facilities on May 19, 2022. The persons named in the proxy card will vote the shares you own in accordance with your instructions on the proxy card you mail. |
| • | Virtually via the Zynga Special Meeting Website: To attend and vote at the Zynga special meeting, visit the Zynga special meeting website. Please have your 11-digit Voter Control Number issued by American Stock Transfer & Trust Company LLC included with your proxy materials to join the special meeting as a stockholder. |
Unless revoked, all duly executed proxies representing shares of Zynga common stock entitled to vote at the Zynga special meeting will be voted at the Zynga special meeting and, where a choice has been specified on the
proxy card, will be voted in accordance with such specification. If you submit an executed proxy without providing instructions for any proposal, your shares will be voted “FOR” the Zynga merger proposal, “FOR” the Zynga compensation proposal and “FOR” the Zynga adjournment proposal. Zynga does not expect that any matter other than the proposals listed above will be brought before the Zynga special meeting.
Beneficial (Street Name) Stockholders
If you hold your shares of Zynga common stock through a bank, broker or other nominee in “street name” instead of as a registered holder, you must follow the voting instructions provided by your bank, broker or other nominee in order to vote your shares. Your voting instructions must be received by your bank, broker or other nominee prior to the deadline set forth in the information from your bank, broker or other nominee on how to submit voting instructions. If you do not provide voting instructions to your bank, broker or other nominee for a proposal, your shares of Zynga common stock will not be voted on that proposal because your bank, broker or other nominee does not have discretionary authority to vote on any of the proposals to be voted on at the Zynga special meeting. See the section titled “—Quorum; Abstentions and Broker Non-Votes.”
If you hold your shares of Zynga common stock in “street name” you may virtually attend and vote at the Zynga special meeting only if you obtain a specific control number from your brokerage firm, bank, dealer or other similar organization, trustee, or nominee giving you the right to vote such shares. See the section titled “—Virtually Attending the Zynga Special Meeting.”
Virtually Attending the Zynga Special Meeting
Zynga stockholders will be able to virtually attend the Zynga special meeting by visiting https://web.lumiagm.com/287175525, password: zynga2022 (case sensitive), which is referred to as the “Zynga special meeting website.”
If you wish to virtually attend and vote your shares online at the Zynga special meeting via the Zynga special meeting website, you must (i) be a Zynga stockholder of record at the close of business on April 4, 2022, which is referred to as the “Zynga record date,” (ii) hold your shares of Zynga common stock beneficially in the name of a broker, bank or other nominee as of the Zynga record date and obtain a specific control number from your broker, bank or other nominee giving you the right to vote such shares, or (iii) hold a valid proxy for the Zynga special meeting.
If you are a stockholder of record, to virtually attend and vote at the Zynga special meeting, you will need the 11-digit Voter Control Number issued by American Stock Transfer & Trust Company LLC included with your proxy materials. If you have misplaced your 11-digit control number, please call AST at (800) 937-5449. If you are a stockholder of record, you do not need to register with American Stock Transfer & Trust Company, LLC to attend and vote at the Zynga special meeting.
If you hold your shares of Zynga common stock in “street name” you may virtually attend and vote at the Zynga special meeting only if you obtain a specific control number from your brokerage firm, bank, dealer or other similar organization, trustee, or nominee giving you the right to vote such shares.
If you plan to virtually attend and vote at the Zynga special meeting via the Zynga special meeting website, Zynga still encourages you to vote in advance by the internet or by mail so that your vote will be counted even if you later decide not to virtually attend the Zynga special meeting via the Zynga special meeting website. Voting your proxy by the internet or mail will not limit your right to virtually attend and vote at the Zynga special meeting via the Zynga special meeting website if you later decide to do so.
Any Zynga stockholder giving a proxy has the right to revoke it at any time before the proxy is voted at the Zynga special meeting. If you are a Zynga stockholder of record, you may revoke your proxy by any of the following actions:
| • | by sending a signed written notice of revocation to Zynga’s Corporate Secretary, provided such notice is received no later than the close of business on May 18, 2022; |
| • | by voting again over the internet as instructed on your proxy card at www.voteproxy.com before 11:59 p.m. Eastern Time on May 18, 2022; |
| • | by submitting a properly signed and dated proxy card with a later date that is received by Zynga’s Corporate Secretary no later than the close of business on May 18, 2022; or |
| • | by virtually attending and voting at the Zynga special meeting via the Zynga special meeting website as described above. |
Only your last submitted proxy will be considered.
Execution or revocation of a proxy will not in any way affect a Zynga stockholder’s right to virtually attend and vote at the Zynga special meeting via the Zynga special meeting website.
Written notices of revocation and other communications relating to the revocation of proxies should be addressed to:
Zynga Inc.
Attention: Office of the Corporate Secretary
c/o Legal Department
699 Eighth Street
San Francisco, California 94103
(855) 449-9642
If your shares of Zynga common stock are held in “street name” and you previously provided voting instructions to your broker, bank or other nominee, you should follow the instructions provided by your broker, bank or other nominee to revoke or change your voting instructions. You may also change your vote by obtaining your specific control number and instructions from your brokerage firm, bank, dealer or other similar organization, trustee, or nominee and voting your shares at the Zynga special meeting via the Zynga special meeting website.
Zynga is soliciting proxies on behalf of the Zynga board of directors. Zynga will bear the entire cost of soliciting proxies from Zynga stockholders. Proxies may be solicited on behalf of Zynga or Zynga directors, officers and other employees in person or by mail, telephone, facsimile, messenger, the internet or other means of communication, including electronic communication. Zynga directors, officers and employees will not be paid any additional amounts for their services or solicitation in this regard.
Zynga will request that banks, brokers and other nominee record holders send proxies and proxy material to the beneficial owners of Zynga common stock and secure their voting instructions, if necessary. Zynga may be required to reimburse those banks, brokers and other nominees on request for their reasonable expenses in taking those actions.
Zynga has also retained D.F. King & Co., Inc. to assist in soliciting proxies and in communicating with Zynga stockholders and estimates that it will pay D.F. King & Co. a fee of approximately $50,000, plus reimbursement for certain out-of-pocket fees and expenses. Zynga also has agreed to indemnify D.F. King & Co. against various liabilities and expenses that relate to or arise out of its solicitation of proxies (subject to certain exceptions).
SEC rules permit companies and intermediaries such as brokers to satisfy delivery requirements for proxy statements and notices with respect to two or more stockholders sharing the same address by delivering a single proxy statement or a single notice addressed to those stockholders. This process, which is commonly referred to as “householding,” provides cost savings for companies. Zynga has previously adopted householding for Zynga stockholders of record. As a result, Zynga stockholders with the same address and last name may receive only one copy of this joint proxy statement/prospectus. Registered Zynga stockholders (those who hold shares of Zynga common stock directly in their name with Zynga’s transfer agent) may opt out of householding and receive a separate joint proxy statement/prospectus or other proxy materials by sending a written request to Zynga at the address below.
Some brokers also household proxy materials, delivering a single proxy statement or notice to multiple Zynga stockholders sharing an address unless contrary instructions have been received from the affected stockholders. Once you have received notice from your broker that they will be householding materials to your address, householding will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate proxy statement or notice, or if your household is receiving multiple copies of these documents and you wish to request that future deliveries be limited to a single copy, please notify your broker.
Zynga will promptly deliver a copy of this joint proxy statement/prospectus to any Zynga stockholder who received only one copy of these materials due to householding upon request in writing to: Zynga Inc., Attn: Investor Relations Department, 699 Eighth Street, San Francisco, California 94103 or by emailing investors@zynga.com.
If a quorum is present at the Zynga special meeting but there are insufficient votes at the time of the Zynga special meeting to approve the Zynga merger proposal, then Zynga stockholders may be asked to vote on the Zynga adjournment proposal. If a quorum is not present, the chairperson of the special meeting or holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting, may adjourn the special meeting, from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. The chairperson of the special meeting or holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting may also adjourn the meeting to another place, if any, date or time, even if a quorum is present.
At any subsequent reconvening of the Zynga special meeting at which a quorum is present, any business may be transacted that might have been transacted at the original meeting and all proxies will be voted in the same manner as they would have been voted at the original convening of the Zynga special meeting, except for any proxies that have been effectively revoked or withdrawn prior to the time the proxy is voted at the reconvened meeting.
If you need assistance voting or completing your proxy card, or if you have questions regarding the Zynga special meeting, please contact D.F. King & Co., Zynga’s proxy solicitor for the Zynga special meeting, at:
D.F. King & Co., Inc.
48 Wall Street
New York, New York 10005
Stockholders may call toll free: (800) 714-3310
Banks and Brokers may call collect: (212) 269-5550
By email at: ZNGA@dfking.com
ZYNGA STOCKHOLDERS SHOULD CAREFULLY READ THIS JOINT PROXY STATEMENT/PROSPECTUS IN ITS ENTIRETY FOR MORE DETAILED INFORMATION CONCERNING THE MERGER AGREEMENT AND THE COMBINATION. IN PARTICULAR, ZYNGA STOCKHOLDERS ARE DIRECTED TO THE MERGER AGREEMENT, WHICH IS ATTACHED AS ANNEX A HERETO.
