Common use of Actions by the Company Clause in Contracts

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to GameStop), or publicly propose to withdraw (or modify in a manner adverse to GameStop), the approval recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a)). Notwithstanding the foregoing, if, prior to obtaining the Company Stockholder Approval, (I) (1) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (2) the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop that the Board of Directors of the Company has made the determination described in clause (1) above, (3) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (4) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (1) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), or (II) (v) the Company receives a Company Takeover Proposal, (w) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with a Notice of Company Adverse Recommendation advising GameStop that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Mergers and the other transactions contemplated by this Agreement.

Actions by the Company. Neither (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company nor any committee thereof shall at a meeting duly called and held has duly adopted resolutions (i) approving this Agreement, the Offer and the Merger (Aas defined in Section 2.1), determining that the Merger is advisable and that ----------- the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) withdraw taking all action necessary to render Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to ---- the Offer, the Merger, this Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the written opinion of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders from a financial point of view (the "Fairness Opinion"). Subject to the ---------------- last sentence of this Section 1.3(a), the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a). The Company hereby -------------- represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)). The -------------- ------------- Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to GameStop)Purchaser (or announce publicly its intention to do so) provided that the disclosure of the receipt of an Acquisition Proposal (as defined in Section ------- 8.11) and the fact that the Board of Directors is considering such Acquisition ---- Proposal or reviewing it with its advisors shall not by itself constitute such a withdrawal, modification or amendment, except that the Board shall be permitted to withdraw, amend or modify its recommendation (or publicly propose announce its intention to withdraw (do so) of this Agreement or modify the Merger in a manner adverse to GameStopPurchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ -------------- (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the approval recommendation or declaration "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of advisability by such Board Section ------- (a) (subject to the last sentence of Directors or any such committee thereof Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of this Agreementthe Company. To the extent practicable, the Company shall cooperate with Purchaser in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's stockholders. Purchaser and its counsel shall be given a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the other transactions contemplated Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by this Agreement or (B) recommend, adopt or approve, or propose publicly applicable federal securities laws. The Company agrees to recommend, adopt or approve, provide Purchaser and Merger Sub and their counsel in writing with any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or allow comments the Company or any its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of its Subsidiaries to execute or enter intosuch comments. (c) In connection with the Offer, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a)). Notwithstanding the foregoing, if, prior to obtaining the Company Stockholder Approval, (I) (1) the Board of Directors of the Company shall have determined cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in good faiththe Company's possession or control regarding the beneficial owners of Common Stock, after consultation with outside counseland shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, that security position listings and computer files) as Merger Sub may reasonably request in communicating the failure Offer to make a Company Adverse Recommendation Change would be inconsistent the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the fulfillment of its fiduciary duties or any other obligations under applicable LawOffer and the Merger, (2) and, if this Agreement is terminated, shall promptly deliver to the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop that the Board of Directors of the Company has made the determination described in clause (1) above, (3) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (4) at the end all copies of such five-Business Day period the Board of Directors of the Company maintains its determination described information then in clause their possession or under their control. (1d) above (after taking into account such proposed adjustments Subject to the terms and conditions of this Agreement), if there shall occur a change in law or (II) (v) in a binding judicial interpretation of existing law that would, in the absence of action by the Company receives or the Board, prevent Merger Sub, were it to acquire a Company Takeover Proposal, (w) the Board of Directors specified percentage of the Company shall have determined in good faithshares of Common Stock then outstanding, after consultation with outside counsel, that from adopting this Agreement by its affirmative vote as the failure to make holder of a Company Adverse Recommendation Change would be inconsistent with majority of shares of Common Stock and without the fulfillment affirmative vote of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with a Notice of Company Adverse Recommendation advising GameStop that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendationstockholder, the Company negotiates with GameStop in good faith will use its best efforts to make promptly take or cause such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law action to be inapplicable to the Mergers and the other transactions contemplated by this Agreementtaken.

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall will (i) (A) withdraw or qualify (or modify in a manner adverse to GameStopParent), or publicly propose to withdraw or qualify (or modify in a manner adverse to GameStopParent), the approval approval, recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company Merger or the other transactions contemplated by this Agreement or Transactions, (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, or fail to reject, any Company Takeover Proposal Proposal, or (C) make any other public statement in connection with the Company Stockholders Meeting inconsistent with the Company Recommendation (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose to approve or recommend, or allow the Company or any of its the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Company Takeover Proposal or requiring the Company to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the Merger or any of the other Transactions, or requiring the Company to fail to comply with this Agreement (an “Acquisition Agreement”) (other than a confidentiality agreement referred to in Section 5.2(a)). Notwithstanding the foregoing, if, prior to obtaining the Company Stockholder ApprovalAppointment Time, (I) (1) if the Board of Directors of the Company shall have determined determines in good faith, faith (after consultation with outside counsel, counsel and a financial advisor of nationally recognized reputation) that the failure to do so could result in a breach of its fiduciary duties under applicable Law, the Board of Directors of the Company may, (i) terminate this Agreement pursuant to Section 8.1(d)(ii) and cause the Company to enter into an Acquisition Agreement with respect to a Superior Proposal (which was made after the date hereof and did not otherwise result from a breach of this Section 5.2) or (ii) in response to an Intervening Event or a Company Takeover Proposal that constitutes a Superior Proposal, make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable LawChange, if: (2A) the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop Parent that the Board of Directors of the Company has made intends to take such action and specifying the determination described reasons therefor and including, as applicable, the most current version of any proposed agreement reflecting the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (or a detailed summary of such terms and conditions if no agreement exists) (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal requires a new Notice of Adverse Recommendation) or a detailed description of the Intervening Event if the Company intends to make a Company Adverse Recommendation Change in clause (1) aboveresponse to an Intervening Event, (3B) for a period of five three Business Days following GameStopParent’s receipt of a Notice of Company Adverse Recommendation, Recommendation the Company negotiates with GameStop Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers Transactions and not make such Company Adverse Recommendation ChangeChange or terminate this Agreement pursuant to Section 8.1(d)(ii), and (4C) at the end of such five-three Business Day period period, the Board of Directors of the Company maintains determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that the Company Takeover Proposal giving rise to the Notice of Adverse Recommendation constitutes a Superior Proposal or determines in good faith (after consultation with outside counsel) that failure to effect a Company Adverse Recommendation could result in a breach of its determination described fiduciary duties under applicable Law in clause (1) above light of the Intervening Event giving rise to the Notice of Adverse Recommendation (after taking into account such proposed adjustments to the terms and conditions of this Agreement), or (II) (v) the Company receives a Company Takeover Proposal, (w) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with a Notice of Company Adverse Recommendation advising GameStop that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreementby Parent), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall will change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Mergers Merger and the other transactions contemplated by this AgreementTransactions.

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to GameStopParent), or publicly propose to withdraw (or modify in a manner adverse to GameStopParent), the approval approval, recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose publicly to approve or recommend, or allow the Company or any of its the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to or could reasonably be expected to lead to, any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a4.2(a)) (an “Acquisition Agreement”). Notwithstanding anything in this Agreement to the foregoingcontrary, if, prior to obtaining the Company Stockholder Approval, (I) (1) the Board of Directors of the Company shall have determined determines in good faith, after consultation with outside counsel, faith that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, it may (A) terminate this Agreement pursuant to Section 7.1(d)(ii) and cause the Company to enter into an Acquisition Agreement with respect to a Superior Proposal (which was made after the date hereof and did not otherwise result from a breach of this Section 4.2) or (B) make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable LawChange, if: (2i) the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop Parent that the Board of Directors of the Company has made intends to take such action and specifying the determination described in clause reasons therefor, including, if applicable, the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (1) above, it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation); (3ii) for a period of five Business Days following GameStopParent’s receipt of a Notice of Company Adverse Recommendation, Recommendation the Company negotiates with GameStop Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers Merger and not make such Company Adverse Recommendation Change, Change (it being understood that such negotiation need not be exclusive); and (4iii) if applicable, at the end of such five-five Business Day period period, the Board of Directors of the Company maintains its determination described in clause (1) above continues to believe that the Company Takeover Proposal, if any, constitutes a Superior Proposal (after taking into account such proposed adjustments to the terms and conditions of this Agreement), or (II) (v) the Company receives a Company Takeover Proposal, (w) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with a Notice of Company Adverse Recommendation advising GameStop that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 Article 13.03 of the DGCLTBCA or Section 21.606 of the TBOC) or other similar state Law that purports to limit or restrict business combinations to be inapplicable to the Mergers Merger and the other transactions contemplated by this Agreement.

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to GameStopParent), or publicly propose to withdraw (or modify in a manner adverse to GameStopParent), the approval approval, recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose publicly to approve or recommend, or allow the Company or any of its the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a4.2(a)) (an “Acquisition Agreement”). Notwithstanding the foregoing, if, prior to obtaining the Company Stockholder Approval, (I) (1) the Board of Directors of the Company shall have determined determines in good faith, after consultation with outside counsel, faith that the failure to do so would be reasonably likely to be a violation of its fiduciary duties to the stockholders of the Company under applicable Delaware Law, the Company may (A) terminate this Agreement pursuant to Section 7.1(d)(iii) and cause the Company to enter into an Acquisition Agreement with respect to a Superior Proposal (which was made after the date hereof and did not otherwise result from a breach of this Section 4.2) or (B) make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable LawChange, if: (2i) the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop Parent that the Board of Directors of the Company has made intends to take such action and specifying the determination described in clause reasons therefor, including, if applicable, the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (1) above, it being understood and agreed that any amendment to the amount of consideration or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation); (3ii) for a period of five three Business Days following GameStopParent’s receipt of a Notice of Company Adverse Recommendation, Recommendation the Company negotiates with GameStop Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers Merger and not make such Company Adverse Recommendation Change, Change (it being understood that such negotiation need not be exclusive); and (4iii) if applicable, at the end of such five-three Business Day period period, the Board of Directors of the Company maintains its determination described in clause (1) above continues to believe that the Company Takeover Proposal, if any, constitutes a Superior Proposal (after taking into account such proposed adjustments to the terms and conditions of this Agreement), or (II) (v) the Company receives a Company Takeover Proposal, (w) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with a Notice of Company Adverse Recommendation advising GameStop that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Mergers Merger and the other transactions contemplated by this Agreement.

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw or qualify (or modify or amend in a manner adverse to GameStopParent or Merger Sub), or publicly propose to withdraw or qualify (or modify or amend in a manner adverse to GameStopParent or Merger Sub), the approval recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company Merger or the other transactions contemplated by this Agreement (the "Company Recommendation") or take any action or make any statement, filing or release, in connection with the Stockholder Meeting or otherwise, inconsistent with the Company Recommendation, or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company an "Adverse Recommendation Change”") or (ii) approve or recommend, or allow the Company or any of its the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a)). Notwithstanding the foregoing, if, prior to obtaining the Company Stockholder Approval, in response to receipt of an unsolicited bona fide written Takeover Proposal, (I) (1A) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counselcounsel and the Company Financial Advisor or another nationally recognized investment banking firm, that the failure to make (i) such proposal is a Company Superior Proposal, and (ii) making an Adverse Recommendation Change would be inconsistent is necessary for the Board of Directors to comply with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (2B) the Company provides to Parent a written notice (a “"Notice of Company Adverse Recommendation”Superior Proposal") (i) advising GameStop Parent that the Board of Directors of the Company has made the determination described in clause (1) abovereceived a Superior Proposal, (3ii) for a period specifying in reasonable detail the material terms and conditions of five Business Days following GameStop’s receipt such Superior Proposal, including the amount per Share that the stockholders of a Notice of Company Adverse Recommendation, the Company will receive (valuing any non-cash consideration at what the Board of Directors of the Company determines in its reasonable good faith judgment, after consultation with its independent financial advisers, to be the fair value of the non-cash consideration) and including a copy of all written materials provided to or by the Company in connection with such Superior Proposal and (iii) identifying the person making such Superior Proposal, (C) the Company cooperates and negotiates with GameStop in good faith with Parent during the three Business Day period specified in the immediately succeeding clause (D) to make such adjustments to in the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Recommendation without an Adverse Recommendation Change, and (4D) at the end Parent does not, within three Business Days of such five-Business Day period the Board of Directors Parent's receipt of the Company maintains its determination described in clause (1) above (after taking into account such proposed adjustments to the terms and conditions Notice of this Agreement), or (II) (v) the Company receives a Company Takeover Superior Proposal, (w) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with a Notice of Company Adverse Recommendation advising GameStop an offer that the Board of Directors of the Company has made the determination described determines in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in its reasonable good faith judgment (after consultation with a financial adviser of nationally recognized reputation) to make such adjustments be as favorable to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors stockholders of the Company maintains its determination described in clause (w) above (after taking into account as such proposed adjustments to the terms and conditions of this Agreement)Superior Proposal, then the Board of Directors of the Company may (A) make a Company an Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Mergers and the other transactions contemplated by this AgreementChange.

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to GameStopParent), or publicly propose to withdraw (or modify in a manner adverse to GameStopParent), the approval recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”"COMPANY ADVERSE RECOMMENDATION CHANGE") or (ii) approve or recommend, or allow the Company or any of its the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a4.2(a)). Notwithstanding the foregoing, if, prior to obtaining the Company Stockholder Approval, (I) (1) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (2) the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop that the Board of Directors of the Company has made the determination described in clause (1) above, (3) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (4) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (1) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), or (II) (v) the Company receives a Company Takeover Proposal, (w) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that it is necessary for the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment proper discharge of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with written notice (a Notice of Company Adverse Recommendation "NOTICE OF ADVERSE RECOMMENDATION") advising GameStop Parent that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five three calendar days (at least one of which shall be a Business Days Day) following GameStop’s Parent's receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers Merger and not make such Company Adverse Recommendation Change, Change and (z) at the end of such fivethree-Business Day day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and and/or (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), 7.1(d)(ii) and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b7.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing Article 12 of the Company’s certificate 's Amended and Restated Certificate of incorporationIncorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Mergers Merger and the other transactions contemplated by this Agreement.

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or qualify or modify in a manner adverse to GameStopParent), or publicly propose to withdraw (or qualify or modify in a manner adverse to GameStopParent), the approval approval, recommendation or declaration of advisability by such the Board of Directors or any such committee thereof of this Agreement, the Company Merger Agreement or the other transactions contemplated by this Agreement (it being understood and agreed that failing to recommend against or taking a neutral position or no position with respect to acceptance of a tender offer or exchange offer, or a publicly disclosed merger or other business combination proposal, constituting a Company Takeover Proposal within ten (10) Business Days after commencement of such offer, or receipt of such proposal, shall be considered an adverse modification), (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal or (C) fail to include the Company Recommendation in the Proxy Statement (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose publicly to approve or recommend, or allow the Company or any of its the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to or could reasonably be expected to result in, any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a4.2(a)) (an “Acquisition Agreement”). Notwithstanding anything in this Agreement to the foregoingcontrary, if, prior to obtaining the Company Stockholder Shareholder Approval, (I) (1) the Board of Directors of the Company shall have determined determines in good faith, faith (after consultation consulting with outside counsel, ) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, it may, prior to obtaining the Company Shareholder Approval, (A) cause the Company to terminate this Agreement pursuant to Section 7.1(d)(ii) and cause the Company to enter into an Acquisition Agreement with respect to a Superior Proposal or (B) make a Company Adverse Recommendation Change would be inconsistent with Change, but in the fulfillment case of (A) or (B) only if: (i) the Company is not in breach in any material respect of its fiduciary duties or any other obligations under applicable Lawpursuant to this Section 4.2, (2ii) the Company provides written notice to Parent (a “Notice of Company Adverse Recommendation”) advising GameStop Parent that the Board of Directors intends to take such action and specifying the reasons therefor, including, if applicable, the terms and conditions of any Superior Proposal, the identity of the Company has made party making the determination described in clause Superior Proposal and copies of any written proposal and all correspondence received from the third party relating to such Superior Proposal that are the basis of the proposed action by the Board of Directors; (1) above, (3ii) for a period of five three (3) Business Days following GameStopParent’s receipt of a Notice of Company Adverse Recommendation (or two (2) Business Days after receipt of a new Notice of Adverse Recommendation; it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall be considered a new Notice of Adverse Recommendation), the Company negotiates with GameStop Parent in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers Merger and not make such Company Adverse Recommendation Change, Change (it being understood that such negotiation need not be exclusive); and (4iii) if applicable, at the end of such five-three (3) Business Day period (or two (2) Business Day) period, the Board of Directors of continues to believe in good faith that the Company maintains its determination described in clause Takeover Proposal constitutes a Superior Proposal (1) above (after taking into account such proposed adjustments any amendments to the terms and conditions of this Agreement), or (II) (v) the Company receives a Company Takeover Proposal, (w) the Board of Directors of the Company Agreement that Parent shall have determined in good faith, after consultation with outside counsel, that the failure agreed to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with a Notice of Company Adverse Recommendation advising GameStop that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith prior to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreementperiod), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Mergers and the other transactions contemplated by this Agreement.

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to GameStopParent), or publicly propose to withdraw (or modify in a manner adverse to GameStopParent), the approval approval, recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose to approve or recommend, or allow the Company or any of its the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to or would reasonably be expected to lead to, any Company Takeover Proposal (other than a confidentiality agreement agreement, referred to in Section 5.2(a4.2(a)) (an “Acquisition Agreement”). Notwithstanding the foregoing, if, prior to obtaining in the Company Stockholder Approval, (I) (1) event that the Board of Directors of the Company shall have determined receives a Company Takeover Proposal that the Board of Directors of the Company determines in good faith, faith (after consultation with outside counselcounsel and a financial advisor of nationally recognized reputation) to be a Superior Proposal, and which Company Takeover Proposal was made after the date hereof and did not otherwise result from a breach of this Section 4.2, the Board of Directors of the Company may, if and only to the extent that the failure Board of Directors of the Company determines in good faith (after consulting with outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under the DGCL, make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable LawChange, (2) if the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop Parent that the Board of Directors of the Company has made intends to take such action and specifying the determination described in clause (1) abovereasons therefor, (3) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to including the terms and conditions of this Agreement as would enable any Superior Proposal that is the Company to proceed with its recommendation basis of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (4) at the end of such five-Business Day period proposed action by the Board of Directors of the Company maintains its determination described in clause (1) above (after taking into account such proposed adjustments it being understood and agreed that any amendment to the financial terms and conditions of this Agreement), or (II) (v) the Company receives a Company Takeover Proposal, (w) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (x) the Company provides GameStop with material term of such Superior Proposal shall require a new Notice of Company Adverse Recommendation advising GameStop that the Board of Directors of the Company has made the determination described in clause (w) above, (y) for a period of five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, and (z) at the end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), then the Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the case of clause (II) above where the Company receives a Company Takeover Proposal, upon termination of this Agreement in accordance with Section 8.1(d)(iii), and concurrent payment of the Company Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing the Company’s certificate of incorporation, any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Mergers and the other transactions contemplated by this Agreement.