GameStop Corp. 6,500,000 Shares Class A Common Stock ($.001 par value) Underwriting Agreement
Exhibit 1.1
Execution Copy
Execution Copy
6,500,000 Shares
Class A Common Stock
($.001 par value)
Class A Common Stock
($.001 par value)
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Certain stockholders (together, the “Selling Stockholders”) identified in Schedule II hereto
of GameStop Corp., a corporation organized under the laws of Delaware (the “Company”), propose to
sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom
Citigroup Global Markets Inc. (the “Representatives”) are acting as representatives, the number of
shares (the “Securities”) of Class A Common Stock, $.001 par value (“Common Stock”) of the Company
set forth in Schedule II hereto. To the extent there are no additional Underwriters listed on
Schedule I other than Citigroup Global Markets Inc., the term Representatives as used herein shall
mean Citigroup Global Markets Inc., as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires.
Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. Certain terms used herein are defined in Section 20 hereof.
1. Representations and Warranties.
(a) The Company represents and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1.
(i) The Company meets the requirements for use of Form S-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as
defined in Rule 405 (File No.: 333-133171) on Form S-3, including a related basic
prospectus, for registration under the Act of the offering and sale of the Securities.
Such Registration Statement, including any amendments thereto filed prior to the Execution
Time, became effective upon filing. The Company may have filed with the Commission, as part
of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more
Preliminary Final Prospectuses, each of which has previously been furnished to you. The
Company will file with the Commission a final prospectus supplement relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus supplement
shall contain all information required by the Act and the rules thereunder, and, except to
the extent the Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(ii) On the Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing
Date (as defined herein), the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act and the Exchange Act and
the respective rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did 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 not misleading; and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Final Prospectus (together with any supplement thereto) will
not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being understood and
agreed that the only such information furnished by or on behalf of any Underwriters
consists of the information described as such in Section 8 hereof.
(iii) The Disclosure Package and the price to the public and the number of securities
to be disclosed on the cover page of the Final Prospectus, when taken
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together as a whole,
do not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives
specifically for use therein.
(iv) (A) At the time of filing the Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule
163, and (D) at the Execution Time (with such date being used as the determination date for
purposes of this clause (D)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by
the Commission relating to the Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r).
(v) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not and is not
an Ineligible Issuer (as defined in Rule 405), without taking account of any determination
by the Commission pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(vi) Each Issuer Free Writing Prospectus does not include any information that
conflicts with the information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed to be a part thereof
that has not been superseded or modified. The foregoing sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the information described as such
in Section 8 hereof.
(vii) [Intentionally omitted].
(viii) Each of the documents incorporated by reference in the Registration Statement,
the Disclosure Package or the Final Prospectus, at the time such document was filed with
the Commission or at the time such document
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became effective, as applicable, complied, in
all material respects, with the requirements of the Exchange Act and did not include an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(ix) The Company and each of its subsidiaries (collectively, the “subsidiaries”) has
been duly incorporated or formed and is validly existing as a corporation or limited
liability company in good standing under the laws of the jurisdiction in which it is
incorporated or formed with full power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described in the Disclosure
Package and the Final Prospectus, and is duly qualified to do business as a foreign
corporation or company and is in good standing under the laws of each jurisdiction which
requires such qualification, except where the failure to be so qualified would not
reasonably be expected to have a material adverse effect on the condition (financial or
otherwise), earnings, business, prospects or properties of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto) (a “Material Adverse Effect”).
(x) Except as would not result in a Material Adverse Effect, all the outstanding shares of capital stock or membership interests of each subsidiary have been duly and
validly authorized and issued and are fully paid and non-assessable, and, except as
otherwise set forth in the Disclosure Package and the Final Prospectus, all outstanding shares of capital stock or membership interests of the subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and clear of any
perfected security interest or any other security interests, claims, liens or encumbrances
other than those created or to be created under the Credit Agreement.
(xi) The Company’s authorized equity capitalization is as set forth or incorporated in
the Disclosure Package and the Final Prospectus; the capital stock of the Company conforms
in all material respects to the description thereof contained or incorporated by reference
in the Disclosure Package and the Final Prospectus; all of the outstanding shares of
capital stock of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable; the Securities being sold hereunder by the Selling Stockholders
have been duly authorized, validly issued, fully paid and non-assessable and conform to the
description thereof contained or incorporated in the Disclosure Package and the Final
Prospectus; and, except as set forth or incorporated by reference in the
Disclosure Package or the Final Prospectus or pursuant to the Company’s Amended and
Restated 2001 Incentive Plan, as amended, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to
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convert any obligations into or
exchange any securities for, shares of capital stock of or ownership interests in the
Company are outstanding.
(xii) There is no franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required; the statements in the Disclosure
Package and the Final Prospectus, insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are in all material respects
accurate and fair summaries of such legal matters, agreements, documents or proceedings;
the contracts so described in the Disclosure Package and the Final Prospectus are in full
force and effect on the date hereof; and neither the Company, the subsidiaries nor, to the
best of the Company’s and the subsidiaries’ knowledge, any other party is in breach of or
default under any of such contracts other than such defaults that, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
(xiii) This Agreement has been duly authorized, executed and delivered by the Company.
(xiv) The Company is not and, after giving effect to the offering and sale of the
Securities by the Selling Stockholders, will not be an “investment company” as defined in
the Investment Company Act of 1940, as amended.
(xv) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required by the Company in connection with the transactions
contemplated herein, except such as have been obtained under the Act and such as may be
required by the Company under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner contemplated
herein and in the Disclosure Package and the Final Prospectus.
(xvi) Neither the sale of the Securities nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the subsidiaries pursuant to, (i) the
organizational documents of the Company or any of the subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which the Company or any
of the subsidiaries is a party or bound or to which its or their property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of the subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction over the
Company or any of the subsidiaries or any of its or their properties; except in the case of
(ii) and (iii) above for any such conflicts, breaches or violations that,
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individually or
in the aggregate, would not reasonably be expected to have a Material Adverse Effect or
have the effect of preventing the Company from performing any of its obligations under this
Agreement.
(xvii) Except pursuant to the Registration Rights Agreement, dated October 8, 2005,
among EB Nevada Inc., Xxxxx X. Xxx and the Company, no holders of securities of the Company
have rights to the registration of such securities under the Registration Statement.
(xviii) The consolidated historical financial statements and schedules of the Company
and its consolidated subsidiaries included or incorporated by references in the Disclosure
Package, the Final Prospectus and the Registration Statement present fairly the financial
condition, results of operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved (except as otherwise noted therein).
(xix) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of the subsidiaries or its
or their property is pending or, to the best knowledge of the Company, threatened that (i)
would reasonably be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated hereby or (ii) would
reasonably be expected to have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(xx) Each of the Company and its subsidiaries owns or leases all such properties as
are necessary to the conduct of its operations as presently conducted.
(xxi) Neither the Company nor any subsidiary is in violation or default of (i) any
provision of its organizational documents, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or to which
its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except, with respect to clauses (ii) and (iii), any such
violations or
defaults that would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect or have the effect of preventing the Company from performing
any of its obligations under this Agreement.
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(xxii) BDO Xxxxxxx, LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules of the Company included in the
Registration Statement, the Final Prospectus and the Disclosure Package, are independent
public accountants with respect to the Company within the meaning of the Act and the
applicable published rules and regulations thereunder.
(xxiii) There are no transfer taxes or other similar fees or charges under Federal law
or the laws of any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement and the sale by the Selling
Stockholders of the Securities.
(xxiv) The Company has filed all foreign, federal, state and local tax returns that
are required to be filed or has requested extensions thereof (except where the failure so
to file, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the foregoing is
due and payable, except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not reasonably be expected to have a Material Adverse
Effect.
(xxv) No labor dispute with the employees of the Company or any of its subsidiaries
exists or, to the knowledge of the Company, is threatened or imminent, and the Company is
not aware of any existing or imminent labor disturbance by the employees of any of its or
the subsidiaries’ principal suppliers, contractors or customers, that, individually or in
the aggregate, would reasonably be expected to have a Material Adverse Effect.
(xxvi) The Company and each of the subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of insurance (and
fidelity or surety bonds) insuring the Company or any of the subsidiaries or their
respective businesses, assets, employees, officers and directors are in full force and
effect; the Company and the subsidiaries are in compliance with the terms of such policies
and instruments in all material respects; and there are no claims by the Company or any of
the subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause; neither the Company
nor any such subsidiary has been refused any insurance coverage sought or applied for; and
neither the Company nor any such subsidiary
has any reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would not,
individually or in the aggregate, have a Material Adverse Effect.
7
(xxvii) No subsidiary of the Company is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such
subsidiary from the Company or from transferring any of such subsidiary’s property or
assets to the Company or any other subsidiary of the Company, except as described in or
contemplated by the Disclosure Package and the Final Prospectus.
(xxviii) The Company and the subsidiaries possess all licenses, certificates, permits
and other authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except where such failure
would not, individually or in the aggregate, have a Material Adverse Effect, and neither
the Company nor any such subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit which,
individually or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(xxix) The Company and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and its subsidiaries’ internal controls over
financial reporting are effective and the Company and its subsidiaries are not aware of any
material weakness in their internal control over financial reporting.
(xxx) The Company and its subsidiaries maintain “disclosure controls and procedures”
(as such term is defined in Rule 13a-15(e) under the Exchange Act) and such Company’s
disclosure controls and procedures are effective.
(xxxi) The Company has not taken, directly or indirectly, any action designed to or
that would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(xxxii) The Company and its subsidiaries are (i) in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and are in
compliance with all permits, licenses or other
8
approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not received
notice of any actual or potential liability under any environmental law, except where such
non-compliance with Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto). Except
as set forth in the Disclosure Package and the Final Prospectus, neither the Company nor
any of the subsidiaries has been named as a “potentially responsible party” under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.
(xxxiii) The minimum funding standard under Section 302 of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and published interpretations
thereunder (“ERISA”), has been satisfied by each “pension plan” (as defined in Section 3(2)
of ERISA) which has been established or maintained by the Company and/or one or more of its
subsidiaries, and the trust forming part of each such plan which is intended to be
qualified under Section 401 of the Code is so qualified; each of the Company and its
subsidiaries has fulfilled its obligations, if any, under Section 515 of ERISA; neither the
Company nor any of its subsidiaries maintains or is required to contribute to a “welfare
plan” (as defined in Section 3(1) of ERISA) which provides retiree or other post-employment
welfare benefits or insurance coverage (other than “continuation coverage” (as defined in
Section 602 of ERISA)); each pension plan and welfare plan established or maintained by the
Company and/or one or more of its subsidiaries is in compliance in all material respects
with the currently applicable provisions of ERISA; and neither the Company nor any of its
subsidiaries has incurred or could reasonably be expected to incur any withdrawal liability
under Section 4201 of ERISA, any liability under Section 4062, 4063, or 4064 of ERISA, or
any other liability under Title IV of ERISA.
(xxxiv) Except as would not reasonably be expected to result in a Material Adverse
Effect: (i) the Company and its subsidiaries own, possess, license or have other rights to
use, all trade and service marks, trade and service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and other
intellectual property (collectively, the “Intellectual Property”) necessary for the conduct
of the Company’s business as now conducted or as proposed in the Disclosure Package and the
Final Prospectus to be conducted; (ii) to the Company’s knowledge, there are no rights of
third
parties to any such Intellectual Property owned by the Company; (iii) to the Company’s
knowledge, there is no material infringement by third parties of any such Intellectual
Property owned by the Company; (iv) there is no pending or, to the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging the Company’s rights in
or to any such Intellectual Property, and the Company is unaware of any facts which would
form a reasonable basis for any
9
such claim; (v) there is no pending or, to the Company’s
knowledge, threatened action, suit, proceeding or claim by others challenging the validity
or scope of any such Intellectual Property, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; and (vi) there is no pending or, to the
Company’s knowledge, threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any trademark, copyright, trade secret or other
proprietary rights of others, and the Company is unaware of any other fact which would form
a reasonable basis for any such claim.
(xxxv) There is and has been no material failure on the part of the Company and any of
the Company’s directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Sarbanes Oxley Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(xxxvi) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such Persons of the FCPA, including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA and the Company and its subsidiaries have conducted their businesses in compliance
with the FCPA and have instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued compliance therewith.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
(xxxvii) The operations of the Company and its subsidiaries are and have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
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(xxxviii) Neither the Company nor any of its subsidiaries nor, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any
of its subsidiaries is currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to each Underwriter.
(b) (ii) Each Selling Stockholder (as to itself only) represents and warrants to, and agrees
with, each Underwriter that:
(i) Such Selling Stockholder is the record and beneficial owner of the Securities to
be sold by it hereunder free and clear of all liens, encumbrances, equities and claims and
has duly endorsed such Securities in blank, and, assuming that each Underwriter acquires
its interest in the Securities it has purchased from such Selling Stockholder without
notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code (“UCC”)), each Underwriter that has purchased such Securities delivered on
the Closing Date to The Depository Trust Company by making payment therefor as provided
herein, and that has had such Securities have been credited to the securities account or
accounts of such Underwriters maintained with The Depository Trust Company, will have
acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to
such Securities purchased by such Underwriter.
(ii) Such Selling Stockholder has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Securities.
(iii) On the Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing
Date, the Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the respective rules and
regulations thereunder; on the Effective Date and at the Execution Time, the Registration
Statement did 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 not misleading; and on the date of any filing pursuant to Rule 424(b), and on the
Closing Date, the Final Prospectus (together with any supplement thereto) will not include
any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that such Selling Stockholder
11
makes no representation or warranty as to the information contained in or omitted
from the Registration Statement or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto).
(iv) The Disclosure Package and the price to the public and the number of securities
to be disclosed on the cover page of the Final Prospectus, when taken together as a whole,
and each electronic roadshow when taken together as a whole with the Disclosure Package, do
not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that such Selling Stockholder
makes no representation or warranty as to the information contained in or omitted from the
Disclosure Package in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Disclosure Package.
(v) No consent, approval, authorization or order of any court or governmental agency
or body is required for the consummation by the Selling Stockholder of the transactions
contemplated herein, except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals as have been
obtained.
(vi) Neither the sale of the Securities being sold by the Selling Stockholder nor the
consummation of any other of the transactions herein contemplated by the Selling
Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict
with, result in a breach or violation of, or constitute a default under any law or, if the
Selling Stockholder is an entity, its organizational documents, or the terms of any
indenture or other agreement or instrument to which the Selling Stockholder or, if the
Selling Stockholder is an entity, any of its subsidiaries, is a party or bound, or any
judgment, order or decree applicable to the Selling Stockholder or, if the Selling
Stockholder is an entity, its subsidiaries, of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the Selling Stockholder
or, if the Selling Stockholder is an entity, its subsidiaries.
Any certificate signed by any Selling Stockholder and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by such Selling Stockholder, as to matters covered thereby, to each
Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholders agree to
12
sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Selling Stockholders, at a purchase price of $46.60 per share, the amount of the
Securities set forth opposite such Underwriter’s name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the Securities shall be made at
the offices of Mayer, Brown, Xxxx & Maw LLP, 00 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, XX at 10:00 AM, New
York City time, on April 17, 2006, or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Selling Stockholders or as provided in
Section 9 hereof (such date and time of delivery and payment for the Securities being herein called
the “Closing Date”). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the Selling Stockholders
by wire transfer payable in same-day funds to an account specified by each Selling Stockholder.
Delivery of the Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5. Agreements. The Company and the Selling Stockholders agree with the several
Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus unless the Company has furnished the
Representatives a copy for their review prior to filing and will not file any such proposed
amendment or supplement to which the Representatives reasonably object. The Company will cause the
Final Prospectus, properly completed, and any supplement thereto in a form approved by the
Representatives to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the Representatives (1) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (2) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become effective, (3) of any
request by the Commission or its staff for any amendment of the Registration Statement, or for any
supplement to the Final Prospectus or for any additional information, (4) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any
notice that would prevent its use or the institution or threatening of any proceeding for that
purpose and (5) of the receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the institution or threatening
13
of any proceeding for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the occurrence of any such suspension or prevention and, upon
such issuance, occurrence or prevention, to obtain as soon as possible the withdrawal of such stop
order or relief from such occurrence or prevention, including, if necessary, by filing an amendment
to the Registration Statement or a new registration statement and using its best efforts to have
such amendment or new registration statement declared effective as soon as practicable.
(b) [Intentionally omitted].
(c) If there occurs an event or development as a result of which the Disclosure Package would
include an untrue statement of a material fact or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances then prevailing, not
misleading, the Company will notify promptly the Representatives so that any use of the Disclosure
Package may cease until it is amended or supplemented.
(d) If, at any time when a prospectus relating to the Securities is required to be delivered
under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made not misleading, or
if it shall be necessary to amend the Registration Statement, file a new registration statement or
supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, including in connection with use or delivery of the Final Prospectus, the Company
promptly will (1) notify the Representatives of any such event; (2) prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 5, an amendment or
supplement or file a new registration statement which will correct such statement or omission or
effect such compliance; (3) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as practicable in order to avoid
any disruption in use of the Final Prospectus and (4) supply any supplemented Final Prospectus to
the Representatives in such quantities as they may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security holders
and to the Representatives an earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act (it being
understood that such delivery requirements shall be deemed to have been satisfied by the Company’s
compliance with the reporting requirements pursuant to the Exchange Act).
(f) The Company will furnish to the Representatives and counsel for the Underwriters signed
copies of the Registration Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by
14
the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as
many copies of each Preliminary Prospectus, Final Prospectus and Issuer Free Writing Prospectus and
any supplement thereto as the Representatives may reasonably request.
(g) The Company will use its best efforts to arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the Representatives may designate
and will maintain such qualifications in effect so long as required for the distribution of the
Securities, but in no event longer than one year from the Effective Date; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(h) The Company will not, without the prior written consent of Citigroup Global Markets Inc.,
offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the Company or any affiliate
of the Company) directly or indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning of Section 16 of
the Exchange Act, any other shares of Common Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock; or publicly announce an intention to
effect any such transaction, for a period of forty-five (45) days after the date of the
Underwriting Agreement, provided, however, that the Company may issue and sell
Common Stock or other securities pursuant to any employee stock option plan, stock ownership plan
or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may
issue Common Stock issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
(i) The Company will comply, in all material respects, with all applicable securities and
other applicable laws, rules and regulations, including, without limitation, the Sarbanes Oxley
Act, and to use its reasonable best efforts to cause the Company’s directors and officers, in their
capacities as such, to comply with such laws, rules and regulations, including, without limitation,
the provisions of the Sarbanes Oxley Act.
(j) Neither the Company nor the Selling Stockholders will take, directly or indirectly, any
action designed to or that would constitute or that might reasonably be expected to cause or result
in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.
(k) The Company agrees to pay the costs and expenses relating to the following matters: (i)
the preparation, printing or reproduction and filing with the
15
Commission of the Registration Statement (including financial statements and exhibits thereto), each Preliminary Prospectus, the
Final Prospectus, any Issuer Free Writing Prospectus or other Free Writing Prospectus and each
amendment or supplement to any of them; provided that Xxxxxxx Xxxxxx shall pay the filing fee for
the registration of his Securities with the Commission; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of such
copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus, any Issuer
Free Writing Prospectus or other Free Writing Prospectus, if any, and all amendments or supplements
to any of them, as may, in each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer taxes in connection
with the sale of the Securities; (iv) the printing (or reproduction) and delivery of this
Agreement, any blue sky memorandum and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Securities; (v) any registration or
qualification of the Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification), if any; (vi) any filings required to
be made with the National Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such filings), if any;
(vii) the transportation and other expenses incurred by or on behalf of the Company and the Selling
Stockholders in connection with presentations to prospective purchasers of the Securities; (viii)
the fees and expenses of the Company’s accountants and the fees and expenses of counsel (including
local and special counsel) for the Company and counsel for the Selling Stockholders; and (ix) all
other costs and expenses incident to the performance by the Company and the Selling Stockholders of
its respective obligations hereunder.
(l) The Selling Stockholders will advise you promptly, and if requested by you, will confirm
such advice in writing, so long as delivery of a prospectus relating to the Securities by an
underwriter or dealer may be required under the Act, of any material change in information in the
Registration Statement or the Final Prospectus relating to such Selling Stockholder.
(m) [Intentionally omitted]
(n) The Company agrees that, unless it obtains the prior written consent of the
Representatives, and the Representatives agree with the Company that, unless it has obtained or
will obtain, as the case may be, the prior written consent of the Company, it has not made and will
not make any offer relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405)
required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Act. Any such Free Writing
Prospectus consented to by the Representatives or the Company is herein referred to as a Permitted
Free Writing Prospectus. The Company agrees that (x) it has
16
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has
complied and will comply, as the case may be, with the requirements of Rules 164 and 433 under the
Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping.
(o) Each Selling Stockholder will advise you promptly, and if requested by you, will confirm
such advice in writing, so long as delivery of a prospectus relating to the Securities by an
underwriter or dealer may be required under the Act, of (i) any material change in the Company’s
condition (financial or otherwise), earnings, business, prospects or properties, (ii) any change in
information in the Registration Statement, the Final Prospectus, any Preliminary Final Prospectus
or any Issuer Free Writing Prospectus or any amendment or supplement thereto relating to such
Selling Stockholder or (iii) any new material information relating to the Company or relating to
any matter stated in the Final Prospectus or any Free Writing Prospectus, in each case which comes
to the attention of such Selling Stockholder.
(p) Each Selling Stockholder represents that it has not prepared or had prepared on its behalf
or used or referred to, and agrees that it will not prepare or have prepared on its behalf or use
or refer to, any Free Writing Prospectus, and has not distributed and will not distribute any
written materials in connection with the offer or sale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company and of the Selling Stockholders contained herein as of the
Execution Time and the Closing Date, to the accuracy of the statements of the Company and the
Selling Stockholders made in any certificates pursuant to the provisions hereof, to the performance
by the Company and the Selling Stockholders of their respective obligations hereunder and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b); any material required to be filed by the Company pursuant
to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of
the Registration Statement or any notice objecting to its use shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Xxxx LLP, counsel for the Company, to
have furnished to the Representatives their opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
(i) each of the Company and certain specified domestic subsidiaries (each a
“Significant Subsidiary”) has been duly incorporated or formed and is
17
validly existing as a corporation or limited liability company in good standing under the laws of the
jurisdiction in which it is incorporated or formed, with full power and authority to own or
lease, as the case may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus; and based solely on
certificates of the Secretaries of State of the applicable jurisdictions, the Company has
been duly qualified or admitted to transact business, and is in good standing as a foreign
corporations in each jurisdiction set forth on Exhibit A to such counsel’s opinion;
(ii) all the outstanding shares of capital stock or membership interests of each
Significant Subsidiary have been duly and validly authorized and issued and are fully paid
and non-assessable;
(iii) the Company’s authorized equity capitalization is as set forth or incorporated
by reference in the Disclosure Package and the Final Prospectus; the capital stock of the
Company conforms in all material respects to the description thereof contained or
incorporated by reference in the Disclosure Package and the Final Prospectus; the
outstanding shares of Common Stock have been duly and validly authorized and issued and are
fully paid and non-assessable; the Securities have been duly and validly authorized and
issued and are fully paid and non-assessable; the Securities are duly listed, and admitted
and authorized for trading, on the New York Stock Exchange; and the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive or other rights to
subscribe for the Securities;
(iv) to the knowledge of such counsel, there is no pending or threatened action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of the subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which is not adequately
disclosed in the Disclosure Package and the Final Prospectus, and to the knowledge of such
counsel, there is no franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be filed as an exhibit
thereto, which is not described or filed as required;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the Company is not and, after giving effect to the offering and sale of the
Securities by the Selling Stockholders, will not be, an “investment company” as defined in
the Investment Company Act of 1940, as amended;
(vii) no consent, approval, authorization, filing with or order of any court or
governmental agency or body is required by the Company in connection with the transactions
contemplated herein, except such as have been obtained under the Act and such as may be
required under the blue sky laws of any
18
jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this
Agreement and in the Disclosure Package and the Final Prospectus;
(viii) neither the sale of the Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms hereof will conflict
with, result in a breach or violation of or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or its subsidiaries pursuant to, (i) the
organizational documents of the Company or its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument filed as an exhibit attached
to the Registration Statement, or (iii) to the knowledge of such counsel, any statute, law,
rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries
of any court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or its subsidiaries or any of its or
their properties, except in the case of (ii) and (iii) above for any such conflicts,
breaches or violations that, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect or have the effect of preventing the Company
from performing any of its obligations under this Agreement;
(ix) other than the Selling Stockholders, no holders of securities of the Company have
rights to the registration of such securities under the Registration Statement; and
(x) the Registration Statement has become effective under the Act; the Registration
Statement and the Final Prospectus (other than the financial statements and other financial
information contained therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of the Act and the rules
thereunder; the Registration Statement has become effective under the Act; any required
filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus,
and any supplements thereto, has been made in the manner and within the time period
required by Rule 424(b); and to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any notice that would prevent its use has been issued, and no proceedings for that purpose have been
instituted or threatened.
In addition, such counsel shall state that they have participated in the preparation of the
Registration Statement and the Final Prospectus and, although they assume no responsibility for the
accuracy and completeness of the Registration Statement and Final Prospectus, based upon such
participation but without independent review or verification, nothing has come to their attention
that causes them to believe that (i) on the Effective Date the Registration Statement contained any
untrue statement of a material fact or
19
omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus as
of its date and on the Closing Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (in each case, other than the
financial statements and other financial information contained therein, as to which such counsel
need express no opinion) or (b) the documents specified in a schedule to such counsel’s letter,
consisting of those included in the Disclosure Package and the price to the public and the number
of Securities to be disclosed on the cover page of the Final Prospectus, when taken together as a
whole, contained any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to matters involving the application
of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(c) The Selling Stockholders shall have requested and caused Klehr, Harrison, Xxxxxx,
Xxxxxxxxx & Xxxxxx LLP (with respect to EB Nevada Inc.) and Xxxxx Xxxx LLP (with respect to Xxxxxxx
Xxxxxx), to have furnished to the Representatives their opinion dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by such Selling
Stockholder and such Selling Stockholder has the legal right and authority to sell,
transfer and deliver in the manner provided in this Agreement the Securities being sold by
such Selling Stockholder hereunder;
(ii) assuming that (A) each Underwriter acquires its interest in the Securities it has
purchased from such Selling Stockholder without notice of any adverse claim (within the
meaning of Section 8-105 of the UCC), (B) each Underwriter that has purchased such
Securities delivered on the Closing Date to The Depository Trust Company by making payment therefor as provided herein, and (C)
such Securities have been credited to the securities account or accounts of such
Underwriters maintained with The Depository Trust Company, each Underwriter will have
acquired a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to
such Securities purchased by such Underwriter;
(iii) no consent, approval, authorization or order of any court or governmental agency
or body is required for the consummation by such Selling Stockholder of the transactions
contemplated herein, except such as may have
20
been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other approvals (specified in
such opinion) as have been obtained; and
(iv) neither the sale of the Securities being sold by such Selling Stockholder nor the
consummation of any other of the transactions herein contemplated by such Selling
Stockholder or the fulfillment of the terms hereof by the Selling Stockholder will conflict
with, result in a breach or violation of, or constitute a default under any law or, if such
Selling Stockholder is an entity, its organizational documents, or the terms of any
indenture or other agreement or instrument known to such counsel and to which such Selling
Stockholder or, if such Selling Stockholder is an entity, its subsidiaries, is a party or
bound based exclusively on an officer’s certificate, or any judgment, order or decree known
to such counsel to be applicable to the Selling Stockholder or, if such Selling Stockholder
is an entity, its subsidiaries, of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling Stockholder or, if
such Selling Stockholder is an entity, its subsidiaries.
(d) The Representatives shall have received from Mayer, Brown, Xxxx & Maw, LLP, counsel for
the Underwriters, such opinion or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the Securities, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and the Company and the
Selling Stockholders shall have furnished to such counsel such documents as they reasonably request
for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a certificate of the Company,
signed by the Chief Executive Officer or the President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus,
any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the Closing Date
and the Company has complied, in all material respects, with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any
notice that would prevent its use has been issued and no proceedings for that purpose have
been instituted or, to the Company’s knowledge, threatened; and
21
(iii) since the date of the most recent financial statements included or incorporated
by reference in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse effect on the condition (financial
or otherwise), earnings, business, prospects or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure Package or the
Final Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the Representatives a certificate, signed
by such Selling Stockholder, dated the Closing Date, to the effect that such Selling Stockholder
has carefully examined the Registration Statement and the Discosure Package or any supplement or
amendment thereto and this Agreement and that the representations and warranties of such Selling
Stockholder in this Agreement are true and correct in all material respects on and as of the
Closing Date to the same effect as if made on the Closing Date.
(g) At the time of execution of this Agreement, the Representatives shall have received from
BDO Xxxxxxx, LLP a letter, in form and substance satisfactory to the Representatives, addressed to
the Underwriters and dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Act and (ii) stating, as of the date hereof (or, with respect
to matters involving changes or developments since the respective dates as of which specified
financial information is given in the Registration Statement and the Final Prospectus, as of a date
not more than three days prior to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by accountants’ “comfort
letters” to underwriters in connection with registered public offerings.
(h) With respect to the letter of BDO Xxxxxxx, LLP referred to in the preceding paragraph and
delivered to the Representatives concurrently with the execution of this Agreement (the “Initial
Letter”), the Company shall have furnished to the Representatives a letter (the “Bring-Down
Letter”) of such accountants, addressed to the Underwriters and dated the Closing Date (i)
confirming that they are independent public accountants within the meaning of the Securities Act,
(ii) stating, as of the date of the
Bring-Down Letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the Registration Statement
and the Final Prospectus, as of a date not more than three days prior to the date of the Bring-Down
Letter), the conclusions and findings of such firm with respect to the financial information and
other matters covered by the Initial Letter and (iii) confirming in all material respects the
conclusions and findings set forth in the Initial Letter.
(i) Subsequent to the Execution Time or, if earlier, the dates as of which information is
given in the Registration Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been
22
(i) any change or decrease
specified in the letter or letters referred to in paragraphs (g) and (h) of this Section 6 or (ii)
any change, or any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(j) The Securities shall have been listed and admitted and authorized for trading on the New
York Stock Exchange, Inc., and satisfactory evidence of such actions shall have been provided to
the Representatives.
(k) Prior to the Closing Date, the Company and the Selling Stockholders shall have furnished
to the Representatives such further information, certificates and documents as the Representatives
may reasonably request.
(l) Subsequent to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical rating organization”
(as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(m) At the Execution Time, the Company shall have furnished to the Representatives a letter
substantially in the form of Exhibit A hereto from each executive officer, Selling Stockholder and
each other director of the Company.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in
form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company and the Selling Stockholders in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Mayer, Brown, Xxxx & Maw, LLP, counsel for the Underwriters, at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, on the Closing Date.
7. Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination
23
pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company or the Selling
Stockholders to perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities as originally filed
or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus, the
Final Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through the Representatives specifically for
inclusion therein. This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Selling Stockholder severally agrees to indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with reference to written
information furnished to the Company by or on behalf of such Selling Stockholder specifically for
inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Selling Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
24
Registration Statement, and each
person who controls the Company within the meaning of either the Act or the Exchange Act, and each
Selling Stockholder to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter furnished
to the Company by or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
25
(e) In the event that the indemnity provided in paragraph (a), (b) or (c) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company,
the Selling Stockholders and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively “Losses”) to which the Company, one
or more of the Selling Stockholders and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter (except as may
be provided in any agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company, the Selling Stockholders and the
Underwriters severally shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and the Selling Stockholders on
the one hand and of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable considerations. Benefits
received by the Company and the Selling Stockholders shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by them, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information provided by the Company or the Selling Stockholders on the one hand or the Underwriters
on the other, the intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same rights to contribution
as the Company, subject in each case to the applicable terms and conditions of this paragraph (e).
(f) The liability of each Selling Stockholder under such Selling Stockholder’s representations
and warranties contained in Section 1 hereof and under the indemnity and
26
contribution agreements
contained in this Section 8 shall be limited to an amount equal to the public offering price of the
Securities sold by such Selling Stockholder to the Underwriters. The Company and the Selling
Stockholders may agree, as among themselves and without limiting the rights of the Underwriters
under this Agreement, as to the respective amounts of such liability for which they each shall be
responsible.
9. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however, that
in the event that the aggregate amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the right to purchase all,
but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter, the Selling Stockholders or the Company. In the event of a default
by any Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company, the Selling Stockholders and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such time (i) trading in the Company’s Common Stock
shall have been suspended by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or minimum prices
shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared either by
Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war, or other calamity
or crisis the effect of which on financial markets is such as to make it, in the sole judgment of
the Representatives, impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its
27
officers, of
the Selling Stockholders and of the Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or on behalf of any
Underwriter, any Selling Stockholders or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (000) 000-0000) and confirmed to the
General Counsel, Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
GameStop Corp., at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxx, 00000, Attention: R. Xxxxxxx Xxxxxxxx,
(000) 000-0000 and confirmed to it at Xxxxx Xxxx LLP, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attention: Xxx X. Xxxxxx, Esq., (000) 000-0000; or if sent to the Selling
Stockholders, will be mailed, delivered or telefaxed to Xxxxxxx Xxxxxx, c/o Barnes & Xxxxx, Inc.,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (000) 000-0000 and EB Nevada Inc., c/o Xxxxx X. Xxx,
000 Xxxxx Xxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxxxx 00000, (000) 000-0000 and confirmed to it at, with
respect to Xxxxxxx Xxxxxx, Xxxxx Xxxx LLP, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: Xxx X. Xxxxxx, Esq., (000) 000-0000, and with respect to EB Nevada Inc., Klehr,
Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx, (000) 000-0000.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14. No Fiduciary Duty. The Company and the Selling Stockholders hereby acknowledge
that (a) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length
commercial transaction between the Company and the Selling Stockholders, on the one hand, and the
Underwriters and any affiliate through which it
may be acting, on the other, (b) the Underwriters are acting as principal and not as an agent
or fiduciary of the Company or any Selling Stockholder and (c) the Company’s and the Selling
Stockholders’ engagement of the Underwriters in connection with the offering and the
process leading up to the offering is as independent contractors and not in any other capacity.
Furthermore, the Company and the Selling Stockholders agree that they are solely responsible for
making their own judgments in connection with the offering (irrespective of whether any of the
Underwriters has advised or is currently advising the Company or any Selling Stockholder on related
or other matters). The Company and the Selling Stockholders agree that they will not claim that
the Underwriters have rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to
28
the Company or the Selling Stockholders, in connection with such
transaction or the process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company, the Selling Stockholders and the Underwriters, or
any of them, with respect to the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Waiver of Jury Trial. The parties hereto hereby irrevocably waive, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20. Definitions. The terms which follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
“Basic Prospectus” shall mean the prospectus referred to in paragraph 1(i)(a) above contained
in the Registration Statement at the Effective Date.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Commission” shall mean the Securities and Exchange Commission.
“Credit Agreement” shall mean that certain Credit Agreement, dated October 11, 2005, by and
among GameStop Corp., certain subsidiaries of GameStop Corp., Bank of America, N.A. and the other
lending institutions listed in the Agreement, Bank of America, N.A. and Citicorp North America,
Inc., as Issuing Banks, Bank of America, N.A., as Administrative Agent and Collateral Agent,
Citicorp North America, Inc., as Syndication Agent, and Xxxxxxx Xxxxx Capital, a division of
Xxxxxxx Xxxxx Business Financial Services Inc., as Documentation Agent.
29
“Disclosure Package” shall mean (i) the Basic Prospectus as amended and supplemented to the
Execution Time, (ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III
hereto, and (iii) any other Free Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure Package.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or become effective.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that was
first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433.
“Preliminary Final Prospectus” shall mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the offering thereof and is used prior to filing of
the Final Prospectus, together with the Basic Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement pursuant to Rule 430A, as amended at the Execution Time and, in the event
any post-effective amendment thereto becomes effective prior to the Closing Date.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430B” and “Rule 433” refer to such rules under the Act.
[Signatures appear on next page]
30
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company, the Selling Stockholders and the several
Underwriters.
| Very truly yours, | ||||||||
| GAMESTOP CORP. | ||||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||||
| Name: | Xxxxx X. Xxxxxxx | |||||||
| Title: | Executive Vice President and Chief Financial Officer | |||||||
| /s/ Xxxxxxx Xxxxxx | ||||||||
| Name: Xxxxxxx Xxxxxx | ||||||||
| EB NEVADA INC. | ||||||||
| By: | /s/ Xxxxx X. Xxx | |||||||
| Name: | Xxxxx X. Xxx | |||||||
| Title: | President and Chief Executive Officer | |||||||
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
confirmed and accepted as of the
date first above written.
| CITIGROUP GLOBAL MARKETS INC. | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Managing Director | |||||
For themselves and the other several
Underwriters named in Schedule I to
the foregoing Agreement.
Underwriters named in Schedule I to
the foregoing Agreement.
31
SCHEDULE I
Underwriters
| Number of Securities | ||||
| Underwriters | to be Purchased | |||
Citigroup Global Markets Inc. |
6,500,000 | |||
Total |
6,500,000 | |||
SCHEDULE II
Selling Stockholders
| Number of Securities to | ||
| Selling Stockholders: | be Sold | |
EB Nevada Inc. |
5,000,000 | |
c/o Xxxxx X. Xxx |
||
911 Mount Pleasant Road |
||
Bryn Mawr, Pennsylvania 19010 |
||
(000) 000-0000 |
||
Xxxxxxx Xxxxxx |
1,500,000 | |
c/o Barnes & Xxxxx, Inc. |
||
122 Fifth Avenue |
||
New York, New York 10011 |
||
(000) 000-0000 |
||
Total |
6,5000,000 | |
2
Schedule III
Approved Issuer Free Writing Prospectuses
None
3
| [Form of Lock-Up Agreement] | EXHIBIT A |
GameStop Corp.
Public Offering of Common Stock
Public Offering of Common Stock
April __, 2006
Citigroup Global Markets Inc.
380 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
380 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), between GameStop Corp., a Delaware corporation (the “Company”), the
selling stockholders named in the Underwriting Agreement and you, as representative of a group of
Underwriters named therein, relating to an underwritten public offering of Class A Common Stock,
$.001 par value (the “Common Stock”), of the Company.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement,
the undersigned will not, without the prior written consent of Citigroup Global Markets Inc. and
except for the Securities (as defined in the Underwriting Agreement) being sold pursuant thereto,
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or otherwise) by the
undersigned or any affiliate of the undersigned or any person in privity with the undersigned or
any affiliate of the undersigned), directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Securities and Exchange Commission promulgated thereunder with
respect to, any shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any
such transaction, for a period of forty-five (45) days after the date of the Underwriting
Agreement. Notwithstanding the foregoing, the undersigned may transfer any or all of the shares of
Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock
owned by the undersigned (i) provided that the amount of shares of Common Stock so transferred,
when added to the amount of shares of Common Stock transferred by the undersigned and any other
executive officers and directors of the Company subsequent to the date hereof, as verified by the
Company, does not exceed 250,000 shares; and (ii) if the undersigned is an individual either during
his or her lifetime or on death, by gift, will or intestate succession to his or her immediate
family or to a trust the beneficiaries of which are exclusively the undersigned and/or a member or
members of his or her immediate family or to a charitable trust of which the undersigned and/or a
member or members of his or her immediate family are the sole trustee(s); provided, however, that
in any such
transfer under (ii), it shall be a condition to such transfer that the transferee execute an
agreement stating that the transferee is receiving and holding the shares of Common Stock subject
to, and the transferee agrees to be bound by, the provisions of this letter agreement, and there
shall be no further transfer of such shares of Common Stock except in accordance with this letter
agreement.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as
defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
| Yours very truly, | ||||
| [ | ||||
| Name of Individual] | ||||
| [Name of Selling Stockholder] | ||||
| By: | ||||
| Name: | ||||
| Title:] | ||||
Name and address: |
||||
2
