Concurrently with the execution of the merger agreement, on January 9, 2022, Take-Two and Zynga entered into (i) a Take-Two voting agreement with certain of Mr. Zelnick’s affiliates, Lainie Goldstein, Daniel Emerson, J Moses, Michael Sheresky, Michael Dornemann, Susan Tolson, LaVerne Srinivasan, Paul Viera, certain of Mr. Viera’s affiliates, and Roland Hernandez and (ii) Zynga voting agreements, with Amy Rawlings, Bernard Kim, Carol G. Mills, Ellen F. Siminoff, Frank Gibeau, James Gerard Griffin, Janice M. Roberts, Jeff Ryan, Louis J. Lavigne, Jr., Mark Pincus, Noel B. Watson, Phuong Y. Phillips, Regina E. Dugan, and William “Bing” Gordon and certain of their respective affiliates, in each case in such person’s capacity as a stockholder of Take-Two or Zynga, as applicable. The Take-Two voting agreement and the Zynga voting agreements are each referred to as a “voting agreement,” and each Take-Two or Zynga stockholder party thereto, as applicable, is referred to as a “supporting stockholder.” The following summary describes certain material provisions of the voting agreements, copies of which are attached hereto as Annexes F-1 through F-3 and incorporated by reference herein in its entirety. The description of the voting agreements in this section and elsewhere in this joint proxy statement/prospectus is qualified in its entirety by reference to the complete text of the voting agreements.
Each Take-Two supporting stockholder agreed that from the date of the voting agreement until the date that the voting agreement terminates, such supporting stockholder will vote or cause to be voted all shares of Take-Two common stock that he, she or it beneficially owns, among other things:
| • | against any action or agreement that has or would reasonably be likely to result in Take-Two’s representations, warranties, and obligations not being fulfilled; |
| • | against any Take-Two alternative acquisition proposal; |
| • | against any amendment to Take-Two’s organization documents if such amendment would reasonably be expected to prevent or materially delay the consummation of the combination; and |
| • | against any other action or agreement that is intended, or would reasonably be expected, to materially impede, interfere with or delay the combination or the transactions contemplated by the merger agreement. |
Each Zynga supporting stockholder agreed that from the date of the voting agreement until the date that the voting agreement terminates, such supporting stockholder will vote or cause to be voted all shares of Zynga common stock that he, she or it beneficially owns, among other things:
| • | in favor of the adoption of the merger agreement; |
| • | against any action or agreement that has or would reasonably be likely to result in Zynga’s representations, warranties, and obligations not being fulfilled; |
| • | against any Zynga alternative acquisition proposal; |
| • | against any amendments to the Zynga organizational documents if such amendment would reasonably be expected to prevent or materially delay the consummation of the combination; and |
against any other action or agreement that is intended, or would reasonably be expected, to materially impede, interfere with or delay the combination or the transactions contemplated by the merger agreement.
As of April 4, 2022, the supporting stockholders subject to the Take-Two voting agreements owned and were entitled to vote in the aggregate less than 1% of the outstanding shares of Take-Two common stock, and the supporting stockholders subject to the Zynga voting agreements owned and were entitled to vote in the aggregate approximately 5.4% of the outstanding shares of Zynga common stock (excluding shares underlying Zynga equity awards), respectively.
The voting agreements do not restrict the actions of the supporting stockholders in their capacities as directors of Take-Two or Zynga respectively.
Each supporting stockholder has also agreed that, with limited exceptions, prior to the termination of its voting agreement, it will not transfer any shares of Take-Two common stock or Zynga common stock, respectively, or other Take-Two securities or Zynga securities, respectively, beneficially owned or acquired by such supporting stockholder on or after the date of its voting agreement.
By its terms, each voting agreement will terminate upon the earliest to occur of: (a) the termination of the merger agreement in accordance with its terms; (b) the effective time; (c) with respect to the Zynga voting agreements, the effectiveness of any amendment, modification or supplement to the merger agreement that, subject to certain exceptions, decreases the amount of, or changes the form of, merger consideration or that is otherwise materially adverse to Zynga’s stockholders; and (d) the termination of such voting agreement by written agreement of each of Take-Two, Zynga and the supporting stockholder(s) party thereto.
