Exhibit 9.1
EXECUTION COPY
VOTING AGREEMENT AND IRREVOCABLE PROXY
April 17, 2005
Electronics Boutique Holdings Corp.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
GameStop Corp.
0000 Xxxxxxx X. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Ladies and Gentlemen:
The undersigned (the "Stockholders," and each a "Stockholder") understand that
Electronics Boutique Holdings Corp., a Delaware corporation ("Company"), and
GameStop Corp., a Delaware corporation ("GameStop"), GameStop, Inc., a Delaware
corporation, GSC Holding Corp. ("Holdco"), a Delaware corporation, Cowboy
Subsidiary LLC, a Delaware limited liability company, and Eagle Subsidiary LLC,
a Delaware limited liability company, propose to enter into an Agreement and
Plan of Merger, dated as of April 17, 2005 (the "Merger Agreement"), providing
for, among other things, the Mergers, in which, among other things, (i) each
issued and outstanding share of Class A common stock, par value $0.001 per
share, of GameStop ("GameStop Class A Common Stock") will be converted into the
right to receive one share of Class A Common Stock, par value $0.001 per share,
of Holdco (the "Holdco Class A Common Stock") and (ii) each issued and
outstanding share of Class B Common Stock, par value $0.001 per share, of
GameStop ("GameStop Class B Common Stock" and together with GameStop Class A
Common Stock, the "GameStop Common Stock") will be converted into the right to
receive one share of Class B Common Stock, par value $0.001 per share, of Holdco
(the "Holdco Class B Common Stock" and together with the Holdco Class A Common
Stock, the "Holdco Common Stock"). Capitalized terms used without definition in
this Voting Agreement (the "Agreement") shall have the meanings ascribed thereto
in the Merger Agreement.
Each Stockholder is the beneficial and record owner of (i) that number of shares
of GameStop Common Stock, (ii) outstanding options, warrants and other rights to
acquire shares of GameStop Common Stock, and (iii) the additional securities of
GameStop; in each case, as set forth opposite the name of such Stockholder on
Schedule I to this Agreement. Each Stockholder, in its capacity as such, is
entering into this Agreement in consideration of, and as a condition to, the
Company's willingness to enter into the Merger Agreement and to consummate the
transactions contemplated thereby.
Each Stockholder confirms its agreement with each of you as follows:
1. Each Stockholder represents, warrants and agrees that (a) Schedule I to
this Agreement sets forth the number and type of shares of GameStop Common Stock
(such shares, together with any shares of GameStop Common Stock acquired by such
Stockholder on or after the date of this Agreement, whether by exercise of
options, warrants or other derivative securities or otherwise, the "Shares") and
the number and type of shares of GameStop Common Stock that are issuable upon
exercise of outstanding warrants, options or other derivative securities,
whether or not exercisable (the "Derivative Securities"), of which such
Stockholder is the record or beneficial owner, (b) such Stockholder owns such
Shares and Derivative Securities, free and clear of all liens, pledges, charges,
encumbrances, voting agreements and commitments of every kind, except for
encumbrances imposed by margin accounts maintained by each Stockholder or
pledges to investment banks or other third party lenders, and (c) such
Stockholder has the power to vote all Shares without restriction and no proxies
heretofore given in respect of any or all of the Shares are irrevocable and that
any such proxies have heretofore been or are hereby revoked. Each Stockholder
further represents and warrants that (i) the Spin-Off and the transactions
contemplated by the Merger Agreement are not part of a plan (or series of
related transactions) involving such Stockholder (and to the knowledge of such
Stockholder, involving any other Person) pursuant to which one or more Persons
acquire directly or indirectly stock representing a 50-percent or greater
interest (measured by voting power or value) in GameStop (for these purposes,
the acquisition of GameStop by Holdco in accordance with the terms of the Merger
Agreement will not be considered a plan to acquire a 50-percent or greater
interest in GameStop) and (ii) it had no agreement, understanding, arrangement
or Substantial Negotiations with GameStop, the Company, or any other Person
regarding the transactions contemplated by the Merger Agreement or similar
transactions at any time prior to November 13, 2004 and to the Stockholder's
knowledge, no Person had an agreement, understanding, arrangement or Substantial
Negotiations with GameStop, Xxxxxx & Xxxxx, Inc. ("B&N") or the Company
regarding the transactions contemplated by the Merger Agreement or similar
transactions at any time prior to November 13, 2004. For purposes of this
Agreement, "Spin-Off" means the distribution of GameStop Class B Common Stock by
B&N on November 12, 2004, which was intended to be tax-free pursuant to Section
355 of the Code, and "Substantial Negotiations" include discussions of
significant economic terms (e.g. the exchange ratio in a reorganization)
between, on the one hand, such Stockholders or one or more officers, directors
or controlling stockholders of GameStop or B&N or another Person or Persons with
the implicit or explicit permission of one or more officers, directors or
controlling stockholders of GameStop or B&N with, on the other hand, one or more
officers, directors or controlling stockholders of the Company or another Person
or Persons with the implicit or explicit permission of one or more officers,
directors or controlling stockholders of the Company.
2. Each Stockholder agrees that it will not, directly or indirectly, sell,
transfer, assign, pledge, encumber or otherwise dispose of any of the Shares, or
any interest therein, or any other securities convertible into or exchangeable
for GameStop Common Stock (including the Derivative Securities), or any voting
rights with respect thereto or enter into any contract, option or other
arrangement or understanding with respect thereto (including any voting trust or
agreement and the granting of any proxy) other than (a) pursuant to the Mergers,
(b) encumbrances imposed by margin accounts maintained by each Stockholder or
pledges to investment banks or other third party lenders and any other transfers
resulting therefrom, (c) transfers to family members of any Stockholder, (d)
transfers by operation of law, by will or pursuant to the laws of decent or
distribution, or (e) with the prior written consent of the Company; provided
that, in the case of clauses (c) and (d) such family member or transferee shall
become a party to this Agreement subject to its terms and obligations to the
same extent as such Stockholder, by executing and delivering to GameStop and the
Company a counterpart to this Agreement. Each Stockholder hereby agrees to
authorize and request GameStop to notify its transfer agent that there is a stop
transfer order with respect to all of the Shares and that this Agreement places
limits on the voting of the Shares. If so requested by the Company, each
Stockholder agrees that the certificates representing Shares shall bear a legend
stating that they are subject to this Agreement and to the irrevocable proxy
granted in paragraph 4 of this Agreement.
3. At every meeting of the stockholders of GameStop called, and at every
postponement or adjournment thereof, and on every action or approval by written
consent of the stockholders of GameStop, each Stockholder irrevocably agrees to
vote any Shares entitled to be voted thereat or to cause any such Shares to be
voted: (i) in favor of adoption of the Merger Agreement; and (ii) against (A)
any proposal made in opposition to adoption of the Merger Agreement or in
competition or inconsistent with the GameStop Merger or any other transaction
contemplated by the Merger Agreement, (B) any GameStop Takeover Proposal, (C)
any change in the management or board of directors of GameStop (other than as
contemplated by the Merger Agreement) and (D) any action or agreement that would
result in a breach of any representation, warranty, covenant or agreement or any
other obligation of GameStop under the Merger Agreement or of such Stockholder
under this Agreement. The obligations of each Stockholder specified in this
paragraph 3 shall apply whether or not (x) the Board of Directors of GameStop
(or any committee thereof) shall (I) withdraw (or modify in a manner adverse to
the Company), or publicly propose to withdraw (or modify in a manner adverse to
the Company), the approval, recommendation or declaration of advisability by
such Board of Directors or any such committee thereof of the Merger Agreement,
the GameStop Merger or the other transactions contemplated by the Merger
Agreement, or (II) recommend, adopt or approve, or propose publicly to
recommend, adopt or approve, any GameStop Takeover Proposal, or (III) approve or
recommend, or allow GameStop or any of its Subsidiaries to execute or enter
into, any letter of intent, memorandum of understanding, agreement in principle,
merger agreement, acquisition agreement, option agreement, joint venture
agreement, partnership agreement or similar agreement constituting or related to
any GameStop Takeover Proposal (other than a confidentiality agreement referred
to in Section 5.3(a) of the Merger Agreement), or (y) GameStop breaches any of
its representations, warranties, agreements or covenants set forth in the Merger
Agreement.
4. In furtherance of the agreements contained in paragraph 3 of this
Agreement and as security for such agreements, each Stockholder hereby
irrevocably appoints R. Xxxxxxx Xxxxxxxx and Xxxxxx X. XxXxxxxx (the
"Grantees"), and each of them individually, as the sole and exclusive
attorneys-in-fact and proxies of such Stockholder, for and in the name, place
and stead of such Stockholder, with full power of substitution and
resubstitution, to vote, grant a consent or approval in respect of, or execute
and deliver a proxy to vote, those Shares that are GameStop Common Stock (a) in
favor of the adoption of the Merger Agreement, (b) against any matter referred
to in paragraph 3(ii) of this Agreement, and (c) in the discretion of the
Grantees, with respect to any proposed postponements or adjournments of any
annual or special meeting of the stockholders of GameStop held in connection
with any of the foregoing. Each Stockholder hereby affirms that the irrevocable
proxy granted by this paragraph 4 is given in connection with, and in
consideration of, the execution of the Merger Agreement by Company, GameStop,
GSC Holdings Corp., Cowboy Subsidiary LLC and Eagle Subsidiary LLC and that such
irrevocable proxy is given to secure the performance of the duties of such
Stockholder under this Agreement. Each Stockholder hereby further affirms that
the proxy granted in this paragraph 4 is coupled with an interest sufficient in
law to support an irrevocable power and may under no circumstances be revoked by
a Stockholder. Each Stockholder hereby ratifies and confirms all that the
Grantees may lawfully do or cause to be done by virtue hereof. The proxy
contained herein with respect to shares of GameStop Common Stock is intended to
be irrevocable in accordance with the provisions of Section 212(e) of the
Delaware General Corporation Law.
5. The parties acknowledge and agree that nothing contained in this
Agreement shall restrict, limit or prohibit any affiliate of any Stockholder
from exercising (in his capacity as a director of GameStop or any such Person)
his fiduciary duties as such a director.
6. Each Stockholder represents and warrants that it has all necessary power
and authority to enter into this Agreement and to grant the irrevocable proxy
provided for in paragraph 5, and that this Agreement is the legal, valid and
binding agreement of such Stockholder and is enforceable against such
Stockholder in accordance with its terms.
7. The representations and warranties contained in this Agreement are
accurate in all respects as of the date of this Agreement.
8. This Agreement may be terminated as to any Stockholder at the option of
such Stockholder, Company or GameStop at any time after the earlier of (a)
termination of the Merger Agreement in accordance with its terms or (b) the day
following the Effective Time.
9. From time to time each Stockholder shall take such further actions as
the Company may reasonably request for the purpose of carrying out and
furthering the intent of this Agreement.
10. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware, without giving effect to principles of
conflict of laws.
11. Each Stockholder recognizes and acknowledges that a breach by it of any
covenants or agreements contained in this Agreement will cause the Company to
sustain damages for which it would not have an adequate remedy at law for money
damages, and therefore each Stockholder agrees that in the event of any such
breach, the Company shall be entitled to specific performance of such covenants
and agreements and injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity, without the
necessity of posting any bond.
12. The effectiveness of this Agreement shall be conditioned upon the
execution and delivery of the Merger Agreement by each of the parties thereto.
13. Except as provided in Section 2(b), each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to the Shares and shall be
binding upon any Person to which legal or beneficial ownership of the Shares
shall pass, whether by operation of law or otherwise. Neither this Agreement,
nor any of the interests or obligations hereunder may be assigned or delegated
by Stockholder, and any attempted or purported assignment or delegation of any
such interests or obligations shall be void.
14. This Agreement may be executed in two or more counterparts (including
by facsimile), each of which shall be deemed an original and all of which
together shall constitute one instrument.
The parties have caused this Agreement to be duly executed on the date
first above written.
/s/ Xxxxxxx Xxxxxx
----------------------------------------------
Xxxxxxx Xxxxxx
XXXXXX & XXXXX COLLEGE BOOKSELLERS, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chairman
/s/ Xxxxxxx Xxxxxx
----------------------------------------------
Xxxxxxx Xxxxxx, as Co-Trustee of The Xxxxxx
Foundation
Acknowledged and Agreed:
GAMESTOP CORP.
By: /s/ R. Xxxxxxx Xxxxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
ELECTRONICS BOUTIQUE HOLDINGS CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
SCHEDULE I
Name of Stockholder Number of Shares of GameStop Owned
------------------- ----------------------------------
Xxxxxxx Xxxxxx Class A Common Stock: 4,500,000 (1)
Class B Common Stock: 5,256,936 (2)
Xxxxxx & Noble College Class B Common Stock: 1,126,913 (2)
Booksellers, Inc.
The Xxxxxx Foundation Class B Common Stock: 654,946 (2)
(1) All of these shares are issuable upon the exercise of stock options.
(2) Xx. Xxxxxx is the direct beneficial owner of 3,475,077 shares of Class B
Common Stock. Xx. Xxxxxx is the indirect beneficial owner of 1,126,913 shares of
Class B Common Stock owned by Xxxxxx & Noble College Booksellers, Inc., a New
York corporation, of which Xx. Xxxxxx owns all of the currently outstanding
voting securities. As co-trustee of The Xxxxxx Foundation, a charitable trust,
Xx. Xxxxxx is the indirect beneficial owner of 654,946 shares of Class B Common
Stock owned by The Xxxxxx Foundation. Excluded from the definition of "Shares"
under this Agreement are 302,712 shares of Class B Common Stock held in a rabbi
trust established by Xxxxxx & Xxxxx, Inc. for the benefit of Xx. Xxxxxx pursuant
to a deferred compensation arrangement, but over which Xx. Xxxxxx has no voting
power.
