Exhibit 10.8
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of October 8th,
2005, by and among GSC Holdings Corp. (to be renamed GameStop Corp.), a Delaware
corporation (the "Company"), and EB Nevada Inc., a Nevada corporation and Xxxxx
X. Xxx (the "Stockholders"), and each person or entity that subsequently becomes
a party to this Agreement pursuant to, and in accordance with, the provisions of
Section 11 hereof. Capitalized terms used herein without definition shall have
the respective meanings ascribed thereto in the Merger Agreement (as defined
below).
WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger
Agreement"), dated April 17, 2005, each share of common stock of Electronics
Boutique Holdings Corp. issued and outstanding immediately prior to the
Effective Time will be converted into the right to receive Company Cash
Consideration and Company Stock Consideration;
WHEREAS, the Company and the Stockholders are executing and delivering this
Agreement pursuant to the terms of the Xxx Group Voting Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following respective meanings:
"Board" shall mean the board of directors of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and all of the rules and regulations promulgated thereunder.
"Holder" shall mean, collectively, the Stockholders and the Permitted
Transferees; provided, however, that the term "Holder" shall not include any of
the foregoing that ceases to own or hold any Registrable Securities.
"Permitted Transferee" shall have the meaning set forth in Section 11.
"Registrable Securities" shall mean (i) the Company Stock Consideration
issued to the Stockholders pursuant to the terms of the Merger Agreement, and
(ii) shall include any shares of the Company's Common Stock issued with respect
to the Registrable Securities as a result of any stock split, stock dividend,
recapitalization, exchange or similar event; provided, however, that all
Registrable Securities shall cease to be Registrable Securities once they have
been sold pursuant to a registration statement or such shares are transferred
pursuant to Rule 144 or are eligible to be sold without restriction pursuant to
Rule 144(k).
"Rule 144" shall mean Rule 144 promulgated under the Securities Act and any
successor or substitute rule, law or provision.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and all
of the rules and regulations promulgated there under.
2. EFFECTIVENESS. This Agreement shall become effective and legally binding
upon the Effective Time.
3. MANDATORY REGISTRATION.
(a) As promptly as practicable following the Effective Time, subject to
Section 6, the Company will prepare and file with the SEC a registration
statement on Form S-3 or any successor form (except that if the Company is not
then eligible to register for resale the Registrable Securities on Form S-3,
then such registration shall be on Form S-1 or any successor form) for the
purpose of registering under the Securities Act all of the Registrable
Securities for resale by, and for the account of, the Holders as selling
stockholders thereunder (the "Registration Statement"). The Registration
Statement shall permit the Holders to offer and sell, on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act, any or all of the
Registrable Securities. The Company agrees to use reasonable best efforts to
cause the Registration Statement to become effective (which shall include using
reasonable best efforts to respond to any comments of the SEC in respect of the
Registration Statement within ten (10) business days following receipt thereof)
within 90 days following the Effective Time. The Company shall use its
reasonable best efforts to keep the Registration Statement effective until the
earlier of (i) the date when all of the Registrable Securities registered
thereunder shall have been sold, or (ii) the date all Registrable Securities are
eligible to be sold without restriction pursuant to Rule 144(k).
(b) Within three (3) business days after a Registration Statement that
covers applicable Registrable Securities is declared effective by the SEC, the
Company shall deliver, or shall cause legal counsel to deliver, to the transfer
agent for such Registrable Securities (with copies to the Holders whose
Registrable Securities are included in such Registration Statement) confirmation
that such Registration Statement has been declared effective by the SEC.
4. COMPANY REGISTRATION.
(a) If, at any time (but without any obligation to do so), the Company
proposes to register any of its Common Stock or other equity securities under
the Securities Act on Form S-1, Form S-2 or Form S-3 (or an equivalent general
registration form then in effect) for purposes of an offering or sale by or on
behalf of the Company of its Common Stock or other equity securities for its own
account, then each such time the Company shall, at least 20 business days prior
to the time when any such registration statement is filed with the SEC, give
prompt written notice to the Holders of its intention to do so. Such notice
shall specify, at a minimum, the number and class of shares or other equity
securities so proposed to be registered, the proposed date of filing of such
registration statement, any proposed means of distribution of such shares or
other equity securities, any proposed managing underwriter or underwriters of
such shares or other equity securities and a good faith estimate by the Company
of the proposed maximum offering price thereof, as such price is proposed to
appear on the facing page of such registration statement. Upon the written
direction of any Holder or Holders, given within 10 days following the receipt
by such Holder of such written notice (which direction shall specify the number
of Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof), the Company shall include in such
registration statement any or all of the Registrable Securities then held by
such Holder requesting such registration (a "Selling Holder") to the extent
necessary to permit the sale or other disposition of such number of Registrable
Securities as such Selling Holder has so directed the Company to be so
registered. Failure of any Stockholders to respond to the Company's notice
within the 10-day period specified above shall be deemed an election by such
Holder not to have any of such Holder's Registrable Securities included in such
registration statement. Notwithstanding the foregoing, the Holders shall not
have any right under this Section 4(a) if the registration proposed to be
effected by the Company relates solely to shares of Common Stock or other equity
securities that are issuable (1) solely to officers or employees of the Company
or any subsidiary thereof pursuant to a bona fide employee stock option, bonus
or other employee benefit plan or (2) as direct consideration in connection with
a merger, exchange offer or acquisition of a business.
(b) In the event that the Company proposes to register shares of Common
Stock or other equity securities for purposes of an offering described in the
first sentence of Section 4(a), and any managing underwriter shall advise the
Company and the Selling Holders in writing that, in its opinion, market or other
factors require a limitation of the number of securities to be underwritten,
then the Company will include in such registration statement such number of
shares or securities as the Company and such Selling Holders are so advised can
be sold in such offering (the "Offering Maximum Number"), as follows and in the
following order of priority: (A) first, the number of shares or securities
proposed to be included by the Company, and (B) second, if and to the extent
that the number of shares or securities to be registered under clause (A) is
less than the Offering Maximum Number, Registrable Securities of each Selling
Holder, allocated pro rata and without any priority as between the Selling
Holders, in proportion to the number sought to be registered by each Selling
Holder relative to the number sought to be registered by all the Selling
Holders, that, in the aggregate, when added to the number of shares or
securities to be registered under clause (A), equals the Offering Maximum
Number.
(c) The Company shall have no obligation under this Section 4 to make any
offering of its securities, or to complete an offering of its securities that it
proposes to make, and shall incur no liability to the Holders for its failure to
do so.
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(d) Any Holder having notified or directed the Company to include any or
all of such Holder's Registrable Securities in a registration statement pursuant
to this Section 4 hereof shall have the right to withdraw such notice or
direction with respect to any or all of the Registrable Securities designated
for registration thereby by giving written notice to such effect to the Company
at least five business days prior to the anticipated effective date of such
registration statement. In the event of any such withdrawal, the Company shall
amend, at the withdrawing Holder's expense, such registration statement and take
such other actions as may be necessary so that such withdrawn Registrable
Securities are not included in the applicable registration and not sold pursuant
thereto, and such withdrawn Registrable Securities shall continue to be
Registrable Securities in accordance herewith. No such withdrawal shall affect
the obligations of the Company with respect to Registrable Securities not so
withdrawn.
(e) Any Holder having notified or directed the Company to include any or
all of such Holder's Registrable Securities in a registration statement pursuant
to this Section 4, shall, unless otherwise agreed by the Company, offer and sell
such Registrable Securities using the same underwriter or underwriters and on
the same terms and conditions as other securities included in such underwritten
offering. Each Selling Holder participating in the underwritten offering shall
(i) enter into an underwriting agreement in customary form with the managing
underwriter or underwriters containing conventional representations, warranties,
allocation of expenses, and customary closing conditions with any underwriter
who acquires any Registrable Securities; and (ii) complete and execute all
reasonable questionnaires, powers of attorney, indemnities, lock-up letters and
other documents required under the terms of such underwritten offering.
5. OBLIGATIONS OF THE COMPANY. In connection with the Company's obligations
with respect to registration of Registrable Securities pursuant to Sections 3
and 4 hereof, the Company shall use its reasonable best efforts to effect or
cause such registration to permit the sale of the Registrable Securities by the
Holders thereof in accordance with the intended method or methods of
distribution thereof described in the registration statement relating thereto
and to maintain the effectiveness of such registration statement for the period
from the date of effectiveness (the "Effective Date") of such registration
statement until the earlier of (1) the date on which the disposition of all of
the Registrable Securities covered by such registration statement is completed
or (ii) the date all Registrable Securities are eligible to be sold without
restriction pursuant to Rule 144(k), (such period, the "Registration Period").
In connection therewith, the Company shall, as soon as reasonably practicable:
(a) Pursuant to Section 3 hereof, prepare and file with the SEC a
registration statement on Form S-3, or such other form as may be utilized by the
Company and as shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as specified in writing
by the Holders thereof;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to keep such registration statement
effective during the Registration Period and to comply with the provisions of
the Securities Act with respect to the sale or other disposition of the
Registrable Securities by the Holders, and furnish to the Holders of Registrable
Securities
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registered thereby and the underwriters, if any, thereof and the sales or
placement agent, if any, therefor copies of any such supplement or amendment
prior to its being used and/or filed with the SEC;
(c) comply in all material respects with the provisions of the Securities
Act applicable to the Company with respect to the disposition of all of the
Registrable Securities covered by such Registration Statement in accordance with
the intended method or methods of disposition by the Holders thereof;
(d) provide the Holders and counsel for the Holders thereof the opportunity
to participate in the preparation of such registration statement, each
prospectus included therein or filed with the SEC and each supplement or
amendment thereto;
(e) furnish to each Holder of Registrable Securities to be registered in
such registration statement (A) such number of copies (including manually
executed and conformed copies) of such registration statement and of each
amendment thereof and supplement thereto (including all annexes, appendices,
schedules and exhibits), (B) such number of copies of the prospectus used in
connection with such registration statement (including each preliminary
prospectus, any summary prospectus and the final prospectus and including
prospectus supplements), and (C) such number of copies of other documents, if
any, incorporated by reference in such registration statement or prospectus, in
each case as each respective party may reasonably request in order to facilitate
the offering and disposition of the Registrable Securities owned by any such
Holder, offered or sold by such agent, or underwritten by such underwriter, and
to permit each Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use
of such prospectus (including each preliminary prospectus, any summary
prospectus and the final prospectus) and any amendment or supplement thereto by
each Holder and by any such agent and underwriter, in each case in the form most
recently provided to such party by the Company, in connection with the offering
and sale of the Registrable Securities covered by the prospectus (including each
preliminary prospectus, any summary prospectus and the final prospectus) or any
supplement or amendment thereto;
(f) promptly notify the Holders of Registrable Securities registered
thereby, the managing underwriter or underwriters, if any, thereof and the sales
or placement agent, if any, therefor and, if requested by any such party,
confirm such notification in writing, (A) when a prospectus or any prospectus
supplement has been filed with the SEC and when the registration statement or
any post-effective amendment thereto has been filed with and declared effective
by the SEC, (B) of the issuance by the SEC of any stop order or the coming to
its knowledge of the initiation of any proceedings for that purpose, (C) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, (D) of the
occurrence of any event that requires the making of any changes to the
registration statement or related prospectus so that such documents will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading (and
the Company shall promptly prepare and furnish to the Holders upon
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request, a reasonable number of copies of a supplemented or amended prospectus
such that, as thereafter delivered to the purchasers of the Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading), and (E) of the Company's determination that the
filing of a post-effective amendment to the registration statement shall be
necessary or appropriate; and, upon the receipt of any notice from the Company
of the occurrence of any event of the kind described in this Section 5(f)(B),
(C) (but only with respect to the jurisdiction suspending qualification), (D) or
(E), (1) the Holders, underwriters and agents shall forthwith discontinue any
offer and disposition of the Registrable Securities pursuant to the registration
statement covering such Registrable Securities and, if so directed by the
Company, shall deliver to the Company all copies (other than permanent file
copies) of the defective prospectus covering such Registrable Securities that
are then in the Holders', underwriters' and agents' possession or control, and
(2) the Company shall, as promptly as practicable thereafter (subject, in the
case of Section 5 (f)(D), to the provisions of Section 10), take such action as
shall be necessary to remedy such event to permit the Holders (and the
underwriters and agents, if any) to continue to offer and dispose of the
Registrable Securities, including, without limitation, preparing and filing with
the SEC and furnishing to the Holders a supplement or amendment to such
prospectus so that, as thereafter deliverable to the purchasers of the
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(g) use its reasonable best efforts to register or qualify the Registrable
Securities covered by such registration statement under and to the extent
required by such other securities or state blue sky laws of such jurisdictions
as any Holder, underwriter or sales or placement agent shall request, and do any
and all other acts and things that may be necessary under such securities or
blue sky laws to enable the Holders, underwriters and agents to consummate the
public sale or other disposition in such jurisdictions of the Registrable
Securities owned by the Holders, except that the Company shall not for any such
purpose be required to qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or submit to liability for state or
local taxes where it would not otherwise be liable for such taxes;
(h) if requested by any managing underwriter or underwriters, any placement
or sales agent or any Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the applicable rules
and regulations of the SEC and as such managing underwriter or underwriters,
such agent or such Holder specifies should be included therein relating to the
terms of the sale of such Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being sold by
the Holders or agent or to any underwriters, the name and description of the
Holders, agent or underwriter, the offering price of such Registrable Securities
and any discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with respect to
any other terms of the offering of the Registrable Securities to be sold by the
Holders or agent or to such underwriters; and make all required filings of such
prospectus supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or post-effective
amendment;
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(i) use its reasonable best efforts to obtain the consent or approval of
each governmental agency or authority, whether federal, state or local, that may
be required to effect such registration or the offering or sale in connection
therewith or to enable the Holders to offer, or to consummate the disposition
of, the Registrable Securities; and
(j) furnish to the Holders or the managing underwriters, if any, on a
timely basis and at the Company's expense, certificates free of any restrictive
legends representing ownership of the Registrable Securities being sold in such
denominations and registered in such names as the Holders or managing
underwriters shall request, and notify the transfer agent of the Company's
securities that it may effect transfers of the Registrable Securities upon
notification from each respective Holder that it has complied with this
Agreement and the prospectus delivery requirements of the Securities Act.
6. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the selling Holders shall furnish to the Company such information regarding them
and the securities held by them as the Company shall reasonably request and as
shall be required in order to effect any registration by the Company pursuant to
this Agreement.
7. EXPENSES OF REGISTRATION. All expenses incurred in connection with the
registration of the Registrable Securities pursuant to this Agreement (excluding
underwriting, brokerage and other selling commissions and discounts), including
without limitation all registration and qualification and filing fees, printing,
and fees and disbursements of counsel for the Company, shall be borne by the
Company. In all cases, the selling Holders will be responsible for, if
applicable, underwriters discounts, brokerage or other selling commissions and
fees and disbursements of counsel for such Holders.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each selling Holder, any investment banking firm acting as an
underwriter for the selling Holder, any broker/dealer acting on behalf of any
selling Holder and each officer and director of such selling Holder, such
underwriter, such broker/dealer and each person, if any, who controls such
selling Holder, underwriter or broker/dealer within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, 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 in light of the
circumstances in which they are made; and will reimburse such selling Holder,
such underwriter, broker/dealer or such officer, director or controlling person
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 indemnity agreement contained in this
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Section 8(a) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in connection with the Registration Statement, any preliminary prospectus
or final prospectus relating thereto or any amendments or supplements to the
Registration Statement or any such preliminary prospectus or final prospectus,
in reliance upon and in conformity with written information furnished expressly
for use in connection with the Registration Statement or any such preliminary
prospectus or final prospectus by or on behalf of the selling Holder, any
underwriter for them or controlling person with respect to them. This Section
8(a) shall not inure to the benefit of any selling Holder with respect to any
person asserting loss, damage, liability or action as a result of a selling
Holder selling Registrable Securities during a Suspension Period (as defined in
Section 10 hereof) or selling in violation of Section 5(c) of the Securities
Act.
(b) To the extent permitted by law, each selling Holder will severally and
not jointly indemnify and hold harmless the Company, each of its officers and
directors, each person, if any, who controls the Company within the meaning of
the Securities Act, any investment banking firm acting as underwriter for the
Company or the selling Holder, or any broker/dealer acting on behalf of the
Company or any other selling Holder, and all other selling Holders against any
losses, claims, damages or liabilities to which the Company or any such
director, officer, controlling person, underwriter, or broker/dealer or other
selling Holder may become subject to, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue or alleged untrue statement
of any material fact contained in the Registration Statement or any preliminary
prospectus or final prospectus, relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, 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 in light of the
circumstances in which they are made, in each case to the extent and only to the
extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, in any preliminary
prospectus or final prospectus relating thereto or in any amendments or
supplements to the Registration Statement or any such preliminary prospectus or
final prospectus, in reliance upon and in conformity with written information
furnished by such selling Holder expressly for use in connection with the
Registration Statement or any preliminary prospectus or final prospectus related
thereto; and such selling Holders will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, underwriter, broker/dealer or other selling Holder in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the liability of each selling Holder hereunder shall be
limited to the gross proceeds (net of underwriting discounts and commissions, if
any) received by such selling Holder from the sale of Registrable Securities
covered by the Registration Statement; and provided, further, however, that the
indemnity agreement contained in this Section 8(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of those selling Holder(s) against
which the request for indemnity is being made (which consent shall not be
unreasonably withheld).
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(c) 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 any indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate in and, to the
extent the indemnifying party desires, jointly with any other indemnifying party
similarly noticed, to assume at its expense the defense thereof with counsel
mutually satisfactory to the indemnifying parties with the consent of the
indemnified party (which consent will not be unreasonably withheld, conditioned
or delayed). In the event that the indemnifying party assumes any such defense,
the indemnified party may participate in such defense with its own counsel and
at its own expense, provided, however, that the counsel for the indemnifying
party shall act as lead counsel in all matters pertaining to such defense or
settlement of such claim and the indemnifying party shall only pay for such
indemnified party's expenses for the period prior to the date of its
participation on such defense. The failure to notify an indemnifying party
promptly of the commencement of any such action, if materially prejudicial to
his ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 8 to the extent of such
prejudice, but the omission so to notify the indemnifying party will not relieve
him of any liability which he may have to any indemnified party otherwise other
than under this Section 8.
(d) Notwithstanding anything to the contrary herein, without the prior
written consent of the indemnified party, the indemnifying party shall not be
entitled to settle any claim, suit or proceeding unless in connection with such
settlement the indemnified party receives an unconditional release with respect
to the subject matter of such claim, suit or proceeding and such settlement does
not contain any admission of fault by the indemnified party.
(e) In order to provide for just and equitable contribution under the
Securities Act in any case in which (i) the indemnified party makes a claim for
indemnification pursuant to Section 8 hereof but is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that the express provisions of Section 8 hereof provide for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
part of any indemnified party, then the Company and the applicable selling
Holder shall contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (which shall, for all purposes of this Agreement,
include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees), in either such case (after
contribution from others) on the basis of relative fault as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the applicable
selling Holder on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 8(e) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in this Section 8(e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof)
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referred to above in this Section 8 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
Notwithstanding any other provision of this Section 8(e), in no event shall
(i) any selling Holder be required to undertake liability to any person under
this Section 8(e) for any amounts in excess of the dollar amount of the gross
proceeds to be received by the selling Holder from the sale of such selling
Holder's Registrable Securities (after deducting any fees, discounts and
commissions applicable thereto) pursuant to any Registration Statement under
which such Registrable Securities are or were to be registered under the
Securities Act and (ii) any underwriter be required to undertake liability to
any person hereunder for any amounts in excess of the aggregate discount,
commission or other compensation payable to such underwriter with respect to the
Registrable Securities underwritten by it and distributed pursuant to the
Registration Statement.
9. REPORTS UNDER THE EXCHANGE ACT. With respect to each Holder, from the
date of Closing until the date on which all of the Registrable Securities that
such Holder owns become freely transferable under Rule 144(k) promulgated under
the Securities Act, the Company agrees to use its reasonable best efforts: (i)
to make and keep public information available, as those terms are understood and
defined in the General Instructions to Form S-3, or any successor or substitute
form, and in Rule 144, (ii) to file with the SEC all reports and other documents
required to be filed by an issuer of securities registered under Sections 13 or
15(d) of the Exchange Act, and (iii) if such filings are not available via
XXXXX, to furnish to such Holder as long as the Holder owns or has the right to
acquire any Registrable Securities prior to the applicable termination date
described above, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company under
Sections 13 or 15(d) of the Exchange Act as may be reasonably requested in
availing such Holder of any rule or regulation of the SEC permitting the selling
of any such Registrable Securities without registration.
10. DEFERRAL AND LOCK-UP.
(a) Notwithstanding anything in this Agreement to the contrary, if the
Company shall furnish to the selling Holders a certificate signed by the Chief
Executive Officer of the Company stating that the Board has made the good faith
determination (i) that continued use by the selling Holders of the Registration
Statement for purposes of effecting offers or sales of Registrable Securities
pursuant thereto would require, under the Securities Act, disclosure in the
Registration Statement (or the prospectus relating thereto) of material,
nonpublic information concerning the Company, its business or prospects or any
proposed transaction involving the Company, and (ii) that such disclosure would
be premature and would be adverse to the Company, its business or prospects or
any such proposed transaction or would make the successful consummation by the
Company of any such transaction significantly less likely, then the right of the
selling Holders to use the Registration Statement (and the prospectus relating
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thereto) for purposes of effecting offers or sales of Registrable Securities
pursuant thereto shall be suspended for a period (the "Suspension Period") of
not more than 60 days after delivery by the Company of the certificate referred
to above in this Section 10. During the Suspension Period, none of the Holders
shall offer or sell any Registrable Securities pursuant to or in reliance upon
the Registration Statement (or the prospectus relating thereto). The Company may
not exercise this right more than two times in each year after the Closing.
Notwithstanding anything herein to the contrary, during such time as any Selling
Holder or an affiliate thereof is a director or executive officer of the
Company, such Selling Holder or an affiliate thereof shall be subject to the
policies of the Company regarding insider sales of the Company's securities and
shall not effect any offers or sales of Registrable Securities pursuant to or in
reliance upon the Registration Statement or otherwise in violation of such
policies.
(b) Holders shall not, during the period starting with the Company's date
of filing of, and ending ninety calendar days immediately following the
effective date of any registration statement pertaining to securities of the
Company, if so requested by an underwriter in an underwritten offering for the
Company, effect any public sale or distribution of any of the Company's equity
securities including a sale pursuant to Rule 144. In addition, if requested by
the Company, the Stockholders shall not effect any public sale or distribution
of any of the Registrable Securities pursuant to the Registration Statement,
during the ten-day period prior to any period during which an exchange ratio or
similar valuation formula based upon the trading prices of the Company's common
stock is being calculated.
11. TRANSFER OF REGISTRATION RIGHTS. None of the rights of any Holder under
this Agreement shall be transferred or assigned to any person. Notwithstanding
the foregoing, a Holder's right under this Agreement may be assigned, in whole
or in part, to any Permitted Transferee, and any Permitted Transferee shall be
deemed to be a Holder (and, to the extent required by law, amend the
Registration Statement in connection with such assignment); provided that no
such assignment shall be effective or confer any right on any such assignee
unless, prior to such assignment, the assignee agrees in writing, by executing
and delivering to the Company an Instrument of Adherence in the form attached as
Exhibit A, that such assignee will be bound by all provisions binding on a
Holder hereunder. A "Permitted Transferee" is (i) any member of the family of a
Holder, including such Holder's spouse and descendants and any trust,
partnership, corporation, limited liability company or other entity for the sole
benefit of such spouse and/or descendants to whom or which any Registrable
Securities have been transferred by such Holder for estate or tax planning
purposes or any charity or foundation to which Registrable Securities have been
transferred by such Holder for estate or tax planning or charitable purposes;
provided that such transferee agrees to be bound by the provisions hereof in
accordance with the preceding sentence and (ii) any trust, partnership,
corporation, limited liability company or other entity for the sole benefit of
such Stockholder and which entity is controlled solely by such Stockholder.
Neither this Agreement nor any provision hereof is intended to confer upon any
Person other than the parties hereto and any Permitted Transferee any rights or
remedies hereunder.
12. ENTIRE AGREEMENT. This Agreement constitutes and contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and it also
10
supersedes any and all prior negotiations, correspondence, agreements or
understandings with respect to the subject matter hereof.
13. MISCELLANEOUS.
(a) This Agreement and the obligations of the Company hereunder shall
terminate on the earlier of: (i) the first date on which no Registrable
Securities remain outstanding, or (ii) the five-year anniversary of the
effectiveness of the Registration Statement.
(b) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, and shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors or permitted assigns. This Agreement shall also be
binding upon and inure to the benefit of any Permitted Transferee of any of the
Registrable Securities provided that the terms and conditions of Section 11
hereof are satisfied.
(c) (i) Any notices, reports or other correspondence (hereinafter
collectively referred to as "correspondence") required or permitted to be given
hereunder shall be sent by courier (overnight or same day) or telecopy or
delivered by hand to the party to whom such correspondence is required or
permitted to be given hereunder. The date of giving any notice shall be the date
of its actual receipt.
(ii) All correspondence to the Company shall be addressed as follows:
GSC Holding Corp.
(to be renamed GameStop Corp.)
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 00000
Telecopy No: 000-000-0000
Attention: R. Xxxxxxx Xxxxxxxx
with a copy to:
Xxxxx Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxx
11
(iii) All correspondence to any Holder shall be addressed as follows:
Xx. Xxxxx X. Xxx
XX Nevada Inc.
000 Xxxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
with a copy to:
Drinker Xxxxxx & Xxxxx, LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy No.: 215-988-2757
Attention: Xxxxxxx Xxxxxxx
Any party may change the address to which correspondence to it is to be
addressed by notification as provided for herein.
(d) The parties acknowledge and agree that in the event of any breach of
this Agreement, remedies at law may be inadequate, and each of the parties
hereto shall be entitled to seek specific performance of the obligations of the
other parties hereto and such appropriate injunctive relief as may be granted by
a court of competent jurisdiction.
(e) This Agreement may be executed in a number of counterparts, each of
which together shall for all purposes constitute one Agreement, binding on all
the parties hereto notwithstanding that all such parties have not signed the
same counterpart.
(f) Any action of the Stockholders under this Agreement shall be made by
approval of those Stockholders holding the majority of the Registrable Shares on
the date of such action.
12
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
GSC HOLDINGS CORP.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive V.P., Chief Financial Officer
and Assistant Secretary
STOCKHOLDERS:
EB NEVADA INC.
By: /s/ Xxxxx X. Xxx
----------------------------
Name: Xxxxx X. Xxx
Title: President
/s/ Xxxxx X. Xxx
----------------------------
Xxxxx X. Xxx
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is hereby made to that certain Registration Rights Agreement,
dated as of October 8, 2005, between GSC Holdings Corp., a Delaware corporation
(the "Company"), the Stockholders and the Permitted Transferees, as amended and
in effect from time to time (the "Registration Rights Agreement"). Capitalized
terms used herein without definition shall have the respective meanings ascribed
thereto in the Registration Rights Agreement.
The undersigned, in order to become the owner or holder of, or have the
right to acquire, _______ shares of Registrable Securities, hereby agrees that,
from and after the date hereof, the undersigned has become a party to the
Registration Rights Agreement in the capacity of a Permitted Transferee, and is
entitled to all of the benefits under, and is subject to all of the obligations,
restrictions and limitations set forth in, the Registration Rights Agreement
that are applicable to Permitted Transferees. This Instrument of Adherence shall
take effect and shall become a part of the Registration Rights Agreement
immediately upon execution.
Print Name of Permitted Transferee:
------------------------------------------
By:
------------------------------------------
Name:
Title:
Permitted Transferee's Address and Fax Number for Notice:
------------------------------------------
------------------------------------------
------------------------------------------
Accepted:
GSC HOLDINGS CORP.
By:
------------------------------------------
Name:
Title:
Date:
------------------------------------------
