Exhibit 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of October 1, 2004,
by and among GameStop Corp., a Delaware corporation ("Buyer"), Xxxxxx & Xxxxx,
Inc., a Delaware corporation ("Xxxxxx & Noble"), and B&N GameStop Holding Corp.,
a Delaware corporation and a wholly owned subsidiary of Xxxxxx & Xxxxx
("Seller," and together with Xxxxxx & Noble, the "B&N Parties").
RECITALS
WHEREAS, Seller is the sole record and beneficial owner of 36,009,000
shares of Class B Common Stock, par value $.001 per share (the "Class B Common
Stock"), of Buyer, which 36,009,000 shares of Class B Common Stock constitute
all of the issued and outstanding shares of Class B Common Stock;
WHEREAS, Xxxxxx & Xxxxx and Seller desire to dispose of all of Seller's
shares of Class B Common Stock and that for various business purposes, such
complete disposition will be implemented by selling the Purchased Stock (defined
below) and distributing the balance of Seller's shares of Class B Common Stock
to the stockholders of Xxxxxx & Noble as part of an overall plan or series of
interrelated transactions;
WHEREAS, Buyer desires to buy from Seller, and Seller desires to sell to
Buyer, 6,107,338 of the shares of the Class B Common Stock owned by Seller (the
"Purchased Stock");
WHEREAS, on or about the date hereof, Xxxxxx & Xxxxx is publicly disclosing
its intention to distribute Seller's remaining 29,901,662 shares of Class B
Common Stock to Xxxxxx & Noble's stockholders in a dividend intended to be
tax-free under Section 355 ("Section 355") of the Internal Revenue Code of 1986,
as amended (the "Spin-Off");
WHEREAS, the management of Xxxxxx & Xxxxx has determined that the Spin-Off
will further substantial corporate business purposes because it will (1) enable
Xxxxxx & Noble's management to focus more closely on its core business, (2)
reduce investor confusion, and (3) enhance Xxxxxx & Xxxxx'x ability to utilize
its equity capital for (a) future acquisitions and (b) employee compensation;
and
WHEREAS, the management of Buyer has determined that the Spin-Off will
further substantial corporate business purposes because it will (1) enable
Buyer's management to focus more closely on its core business, (2) increase the
number of Buyer's shareholders and the number of Buyer's publicly traded shares,
(3) reduce investor confusion, and (4) enhance Buyer's ability to utilize its
equity capital for (a) potential equity offerings and equity-linked debt
offerings, (b) future acquisitions and (c) employee compensation.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein, and upon the terms and subject to the
conditions hereinafter set forth, the parties hereto hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of this
Agreement, in consideration of an aggregate purchase price of $111,519,991.80,
consisting of $37,500,000 in cash (the "Cash Consideration") and a promissory
note in the form attached hereto as Exhibit A in the principal amount of
$74,019,991.80 (the "Note"), Seller hereby sells, assigns and transfers to Buyer
the Purchased Stock.
2. Deliveries. On the date hereof, (i) Seller shall deliver to Buyer a
certificate or certificates representing the Purchased Stock, together with
stock powers or other instruments of transfer duly endorsed in the name of
Buyer, and (ii) Buyer shall deliver to Seller (x) the Cash Consideration by wire
transfer of immediately available funds to an account or accounts designated by
Seller, (y) the duly executed Note, and (z) to the extent that the certificate
or certificates delivered pursuant to clause (i) above represents more shares
than the Purchased Stock, a certificate or certificates registered in the name
of Seller representing such excess shares of Class B Common Stock.
3. Representations and Warranties. (a) The B&N Parties hereby, jointly and
severally, represent and warrant to Buyer as follows:
(i) Each B&N Party is duly organized, validly existing and in good
standing under the laws of the State of Delaware, and each B&N Party has
the full right, power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereunder. This Agreement
has been duly and validly executed and delivered by each B&N Party and,
assuming the due execution and delivery of this Agreement by Buyer,
constitutes the legal, valid and binding obligation of such B&N Party,
enforceable against such B&N Party in accordance with its terms, subject to
all laws and rules of law including (x) those of general application
relating to bankruptcy, insolvency and the relief of debtors, and (y) those
governing specific performance, injunctive relief and other equitable
remedies.
(ii) The execution, delivery and performance by each B&N Party of this
Agreement and the consummation by each B&N Party of the transactions
contemplated hereby will not, with or without the giving of notice or the
lapse of time, or both, (x) violate any provision of law, rule or
regulation to which such B&N Party is subject, (y) violate any order,
judgment or decree applicable to such B&N Party, or (z) conflict with, or
result in a breach or default under any agreements or other instruments to
which such B&N Party is a party or by it or any of its properties or assets
are bound, except, in each case, for violations, conflicts, breaches or
defaults which in the aggregate would not have a material adverse effect on
the businesses, operations, assets, properties or financial condition of
such B&N Party or the consummation of the transactions contemplated under
this Agreement.
(iii) Seller is the sole record and beneficial owner of the Purchased
Stock, free and clear of all liens, claims, security and other interests,
pledges, mortgages, rights of first refusal, preemptive rights, transfer
restrictions, options, proxies, voting trusts and other encumbrances
("Liens"), other than Liens that may exist pursuant to Xxxxxx & Xxxxx'x
Amended and Restated Credit and Term Loan Agreement, dated as of August 10,
2004, with Bank of America, N.A., as administrative agent, and the security
documents relating thereto, which permit the sale of the Purchased Stock
contemplated by this Agreement.
(iv) No consent, approval or authorization of, or filing with, any
governmental or regulatory authority or any other person or entity is
required in connection with the execution, delivery and performance by
Seller of this Agreement, except post-transaction filings pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(b) Buyer hereby represents and warrants to the B&N Parties as follows:
(i) Buyer is duly organized, validly existing and in good standing
under the laws of the State of Delaware, and Buyer has the full right,
power and authority to execute and deliver this Agreement and the Note and
to consummate the transactions contemplated hereunder and thereunder. This
Agreement and the Note have been duly and validly executed and delivered by
Buyer, and, assuming the due execution and delivery of this Agreement by
the B&N Parties, this Agreement and the Note constitute the legal, valid
and binding obligations of Buyer, enforceable against Buyer in accordance
with their terms, subject to all laws and rules of law including (x) those
of general application relating to bankruptcy, insolvency and the relief of
debtors, and (y) those governing specific performance, injunctive relief
and other equitable remedies.
(ii) The execution, delivery and performance by Buyer of this
Agreement and the Note and the consummation by Buyer of the transactions
contemplated hereby and thereby will not, with or without the giving of
notice or the lapse of time, or both, (x) violate any provision of law,
rule or regulation to which Buyer is subject, (y) violate any order,
judgment or decree applicable to Buyer, or (z) conflict with, or result in
a breach or default under any agreements or other instruments to which
Buyer is a party or by which it or any of its properties or assets are
bound, except, in each case, for violations, conflicts, breaches or
defaults which in the aggregate would not have a material adverse effect on
the businesses, operations, assets, properties or financial condition of
Buyer or the consummation of the transactions contemplated under this
Agreement and the Note.
(iii) No consent, approval or authorization of, or filing with, any
governmental or regulatory authority or any other person or entity is
required in connection with the execution, delivery and performance by
Buyer of this Agreement and the Note, except post-transaction filings
pursuant to the Exchange Act.
(c) The representations and warranties set forth herein shall survive
the consummation of the transactions contemplated by this Agreement, and
shall terminate upon the full payment of the principal and interest due and
owing under the Note.
4. Further Assurances. At any time and from time to time after the date
hereof, the B&N Parties, on the one hand, and the Buyer, on the other hand,
shall, at the request of the other and at the expense of such requesting party,
execute and deliver any further instruments or documents and take all such
further action as shall be necessary, desirable or expedient to make effective
the consummation of the transactions contemplated hereby. The parties hereto
agree and acknowledge that the Separation Agreement between Xxxxxx & Noble and
the Buyer, dated as of January 1, 2002, shall continue to be in full force and
effect following the Spin-Off, in accordance with its terms, and the parties
hereto shall fully cooperate in effecting the Spin-Off as tax free under Section
355.
5. Miscellaneous. (a) This Agreement and the Note constitute the sole
understanding of the parties with respect to the subject matter hereof and
supersede and cancel all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter.
(b) No amendment or modification of this Agreement shall be binding unless
the same shall be in writing and duly executed by the parties hereto, except
that any of the terms and provisions of this Agreement may be waived in writing
at any time by the party which is entitled to the benefits thereof. No waiver of
any provision of this Agreement shall be deemed to or shall constitute a waiver
of any other provision hereof.
(c) The terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
hereto; provided, however, that this Agreement may not be assigned by any of the
B&N Parties without the prior written consent of Buyer or by Buyer without the
prior written consent of the B&N Parties, except that any of the B&N Parties
may, at its discretion, assign this Agreement to any direct or indirect wholly
owned subsidiary of Xxxxxx & Xxxxx. Notwithstanding anything to the contrary
contained herein, Seller shall be entitled to assign its rights under the Note
in its sole and absolute discretion.
(d) All notices and other communications under this Agreement must be in
writing and will be deemed to have been duly given or made as follows: (i) if
sent by registered or certified mail in the United States, return receipt
requested upon receipt, five business days after being so sent; (ii) if sent by
reputable overnight air courier, two business days after being so sent; (iii) if
sent by telecopy transmission, with a copy mailed on the same day in the manner
provided in clause (i) or (ii) above, when transmitted and receipt is confirmed
by telephone; or (iv) if otherwise actually personally delivered, when
delivered, and shall be sent or delivered as follows:
If to the Buyer, to:
GameStop Corp.
0000 Xxxxxxx X. Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
If to any B&N Party, to:
Xxxxxx & Noble, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
(e) This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York. Each of the parties hereby
irrevocably and unconditionally submits to the nonexclusive personal
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and to the United States District Court for the Southern District of New
York, and any appellate court thereof in any action or proceeding arising out of
or relating to this Agreement or the Note or for the recognition or enforcement
of any judgment arising out of or relating to this Agreement or the Note, and
hereby waives any objection as to venue and forum non conveniens with respect to
any such actions brought in any of such courts. Process in any such action or
proceeding may be served by certified mail on any party hereto anywhere in the
world where such party is found and may also be served upon any party in the
manner provided for the service of process under the laws of the State of New
York or the laws of the place or jurisdiction where such party is found.
(f) The section and paragraph headings contained in this Agreement are for
reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(g) All costs and expenses incurred in connection with this Agreement and
the transactions contemplated by this Agreement shall be the obligation of the
party incurring such costs and expenses.
(h) This Agreement may be executed in counterparts, each of which shall be
deemed an original and together which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
GAMESTOP CORP.
By:/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Xxxxxxx
XXXXXX & NOBLE, INC.
By:/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
Executive Vice President of
Corporate Finance
and Strategic Planning
B&N GAMESTOP HOLDING CORP.
By:/s/ Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx
Executive Vice President of
Corporate Finance
and Strategic Planning
