Exhibit 10.16
AGREEMENT AND XXXX OF SALE
THIS AGREEMENT AND XXXX OF SALE (this "Agreement") is entered into as
of the 13th day of July, 1998 by and between EB NEVADA INC., a Nevada
corporation having its principal office at 0000-X Xxxxxxxxxxx Xxxxx, Xxxxx 0,
Xxx Xxxxx, XX ("Transferor"), and ELECTRONICS BOUTIQUE HOLDINGS CORP., a
Delaware corporation having its principal office at 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxx Xxxxxxx, XX ("Transferee").
WHEREAS, Transferee was incorporated under the laws of the State of
Delaware in March 1998 as a holding company for the operating activities of The
Electronics Boutique, Inc.;
WHEREAS, in contemplation of an initial public offering (the "IPO") of
shares of common stock, par value $.01 per share, of Transferee ("Common
Stock"), Transferor and Transferee have determined that it is in their best
interests for Transferor to transfer to Transferee all of the shares that it
holds in Electronics Boutique of America Inc., Elbo Inc., EB International, Inc.
and Electronics Boutique Canada Inc. (collectively, the "Operating Shares");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, covenant and agree as follows:
1. Exchange of Shares.
(a) Effective (i) immediately prior to the execution of the
Underwriting Agreement between Transferor and the Transferee on the one hand and
Prudential Securities Incorporated and Xxxxxxx Xxxxx Xxxxxx, as representatives
of the underwriters on the other, to be entered into in connection with the IPO,
and (ii) simultaneously with the effectuation of (A) the Agreement and Xxxx of
Sale, dated as of July 13, 1998, between The Electronics Boutique, Inc. and
Transferor, (B) the Agreement and Xxxx of Sale, dated as of July 13, 1998,
between Transferee and EB Investment Corp. and (C) the Agreement and Consent to
Assignment and Assumption of Partnership Interests, dated as of July 13, 1998,
by and among EB Services Corporation, Xxxxx X. Xxx, Xxxxx X. Xxx, certain trusts
for the benefit of Xxxxx X. Xxx, Xxxxx X. Xxx and Xxxx X. Xxx, Transferee, EB
Investment Corp. and Electronics Boutique of America Inc., Transferor shall
assign, sell, transfer, grant and set over unto Transferee all of Transferor's
right, title and interest in the Operating Shares in exchange for that number of
shares of Common Stock equal to the amount obtained by dividing $257,705,600 by
the initial public offering price per share in the IPO (the "Holdings Shares"),
in a transaction described in Section 351 of the Internal Revenue Code of 1986,
as amended.
(b) Transferee agrees to accept the Operating Shares in
exchange for the Holdings Shares, which will be validly issued, fully paid, and
non-assessable.
In furtherance of the foregoing, the parties hereto further agree as
follows:
2. Representations and Warranties. Transferor (i) has good title to the
Operating Shares and the power and authority to assign and transfer the
Operating Shares and (ii) has made no prior assignment thereof and (iii) to the
best of Transferor's knowledge, the Operating Shares are free and clear of all
liens, claims and encumbrances.
3. Successors and Assigns. The rights, interests and benefits granted
hereby and the burdens and obligations imposed hereby shall inure to the benefit
of and be binding upon, as the case may be, the parties hereto and their
respective successors and assigns.
4. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without regard to its choice of laws principles.
5. Further Assurances. Transferor and Transferee each agree that they
shall execute and deliver such instruments, documents and other writings as may
be necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
6. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute a single agreement.
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IN WITNESS WEHREOF, Transferor and Transferee have caused this Agreement
to be duly executed as of the day and year first above written.
TRANSFEROR: TRANSFEREE:
EB NEVADA INC. ELECTRONICS BOUTIQUE HOLDINGS
CORP.
By: /s/ Xxxxx X. Xxx By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxx X. Xxx, Xxxxxx X. Xxxxxxxxx,
Secretary President and Chief Executive Officer
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