EXHIBIT 1.1
4,000,000 SHARES
ELECTRONICS BOUTIQUE HOLDINGS CORP.
COMMON STOCK, $0.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
August [___], 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANC OF AMERICA SECURITIES LLC
SWS SECURITIES, INC.
As Representatives of the several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Electronics Boutique Holdings Corp., a Delaware
corporation ("COMPANY") proposes to issue and sell 2,500,000 shares of its
common stock, $0.01 par value per share ("SECURITIES") and EB Nevada Inc., a
Nevada corporation ("SELLING STOCKHOLDER") proposes to sell 1,500,000
outstanding shares of the Securities (such 4,000,000 shares of Securities being
hereinafter referred to as the "FIRM SECURITIES"). The Selling Stockholder also
proposes to sell to the Underwriters, at the option of the Underwriters, not
more than 600,000 additional outstanding shares of the Securities, as set forth
below (such 600,000 additional shares being hereinafter referred to as the
"OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities are
herein collectively called the "OFFERED SECURITIES". The Company and the Selling
Stockholder hereby agree with the several Underwriters named in SCHEDULE A
hereto ("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDER. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-65248) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and either (A) has been
declared effective under the Securities Act of 1933, as amended ("ACT") and
is not proposed to be amended or (B) is proposed to be amended by amendment
or post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (A) an
additional registration statement (the "ADDITIONAL REGISTRATION STATEMENT")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("RULE 462(b)") under the Act and, if so filed, has
become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will
become effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration
statement and such additional registration statement. If the Company does
not propose to amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose to
amend it, and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under
the Act or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "EFFECTIVE TIME" with respect to
the initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means (A)
if the Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with respect
to such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective pursuant
to Rule 462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated by
reference therein, including all information contained in the additional
registration statement (if any) and deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement pursuant to the General Instructions of the Form on
which it is filed and including all information (if any) deemed to be a
part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is hereinafter
referred to as the "INITIAL REGISTRATION STATEMENT". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration are hereinafter referred to collectively as the "REGISTRATION
STATEMENTS" and individually as a "REGISTRATION STATEMENT". The form of
prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)")
under the Act or (if no such filing is required) as included in a
Registration Statement, including all material incorporated by reference in
such prospectus, is hereinafter referred to as the "PROSPECTUS". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act. No stop order suspending the effectiveness of the
Registration Statements or any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the best knowledge
of the Company, threatened by the Commission.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all respects to the requirements of the Act and the
rules and regulations of the Commission ("RULES AND REGULATIONS") and did
not include 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 not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed or will conform, in all respects to the requirements of the Act
and the Rules and Regulations and did not include, or will not include, any
untrue statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time of
the
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Additional Registration Statement is prior to the execution and delivery of
this Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, and on each Closing Date (as
hereinafter defined) each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed and (B) on each
Closing Date, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement of
a material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
and no Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon 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 is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership, lease or operation of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified could not, individually or in the aggregate,
have a material adverse effect on the condition (financial or other),
business, results of operations, properties or general affairs of the
Company and its subsidiaries taken as a whole (a "MATERIAL ADVERSE
EFFECT").
(iv) The Company's only subsidiaries are listed on EXHIBIT I hereto.
Each subsidiary of the Company has been duly incorporated or organized and
is a validly existing corporation or limited liability partnership, as the
case may be, in good standing under the laws of the jurisdiction of its
incorporation or organization, as applicable, with power and authority
(corporate and other) to own, lease and operate its properties and conduct
its business as described in the Prospectus; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation or
partnership, as applicable, in good standing in all other jurisdictions in
which its ownership, lease or operation of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified could not, individually or in the aggregate, have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company that is a corporation has been duly authorized
and validly issued and is fully paid and nonassessable; and the capital
stock of each subsidiary that is a corporation owned by the Company,
directly or through subsidiaries, is owned free and clear of any mortgage,
pledge, lien, security interest, claim, encumbrance or defect of any kind.
The Company, through its subsidiaries EB Investment Corp., a Delaware
corporation, and Electronics Boutique of America Inc., a Pennsylvania
corporation, indirectly owns 99.99% of the partnership interests in EB
Services Company, LLP, a Pennsylvania limited liability partnership, free
and clear of any mortgage, pledge, lien, security interest, claim,
encumbrance or defect of any kind.
(v) The Offered Securities to be sold by the Company have been duly
authorized and will be, when issued and paid for in accordance with this
Agreement, validly issued, fully paid and nonassessable and no further
approval or authority of the stockholders or the Board of Directors of the
Company is or will be required for the issuance and sale of the Offered
Securities to be sold by the
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Company as contemplated by this Agreement; the Offered Securities to be
sold by the Selling Stockholder and all other outstanding shares of capital
stock of the Company have been duly authorized, are validly issued, fully
paid and nonassessable and have been issued in compliance with applicable
federal and state securities laws; the authorized and outstanding capital
stock of the Company conform to the descriptions thereof contained in the
Prospectus under the captions "Capitalization" and "Description of Capital
Stock"; and the stockholders of the Company have no preemptive or similar
rights with respect to the Offered Securities or any other securities of
the Company.
(vi) There are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the
Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the transactions contemplated by this
Agreement.
(vii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any third party
(whether acting in an individual, fiduciary or other capacity) granting
such third party the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned
or to be owned by such third party or to require the Company to include
such securities in the Offered Securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act.
(viii) On the date each Registration Statement was first filed with
the Commission, and at the Effective Time, the Company met the conditions
for use of Form S-3 under the Act and the Rules and Regulations.
(ix) The Securities are listed on the Nasdaq Stock Market's National
Market. The Offered Securities have been approved for listing subject to
notice of issuance on the Nasdaq Stock Market's National Market.
(x) No consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether acting in an
individual, fiduciary or other capacity) or any governmental or regulatory
agency or body or any court is required for the consummation by the Company
of the transactions contemplated by this Agreement in connection with
issuance and sale of the Offered Securities, except such as have been
obtained and made under the Act and such as may be required under state
securities laws in connection with the issuance and sale of the Offered
Securities.
(xi) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate action on the part of the Company
and, to the extent required, its stockholders and do not and will not
conflict with or result in a breach or violation of any of the terms and
provisions of, and do not and will not constitute a default (or an event
which with the giving of notice or the lapse of time or both could
reasonably be likely to constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets
or properties of the Company or any of its subsidiaries (including any
individual institution within such entity) under (A) the charter, by-laws
or other organizational documents of the Company or any subsidiary, (B) any
statute, rule, regulation, requirement, order or decree of any governmental
or regulatory agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their properties,
assets or operations, or (C) any indenture, mortgage, loan or credit
agreement, note, lease, permit, license or other agreement or instrument to
which the Company or any subsidiary is a party or by which the Company or
any subsidiary is bound or to which any of the properties, assets or
operations of the Company or any subsidiary is subject, except in the case
of clause (C) above, as could not, individually or in the aggregate, have a
Material Adverse Effect.
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(xii) This Agreement has been duly authorized, executed and delivered
by the Company.
(xiii) The Company and its subsidiaries have good and marketable title
to all real properties and all other properties and assets owned by them,
in each case free and clear of any mortgage, pledge, lien, security
interest, claim or other encumbrance or defect that could individually or
in the aggregate materially affect the value thereof, materially interfere
with the use made or to be made thereof by them, or, individually or in the
aggregate, have a Material Adverse Effect; and the Company and its
subsidiaries hold any leased real or personal property under valid and
subsisting leases which are enforceable against the Company with no
exceptions that would materially interfere with the use made or to be made
thereof by them; neither the Company nor any subsidiary is in default under
any such lease; and no claim of any sort has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any such lease
or affecting or questioning the right of such entity to the continued
possession of the leased properties under any such lease, which claim
could, individually or in the aggregate, have a Material Adverse Effect.
(xiv) The Company and its subsidiaries possess all approvals,
authorizations, certificates, permits and licenses (collectively,
"LICENSES") issued by appropriate governmental or regulatory agencies or
bodies as are necessary to own, lease or operate their properties and
conduct their business as described in the Prospectus, and all such
Licenses are in full force and effect, except where the failure to possess
such Licenses could not, individually or in the aggregate, have a Material
Adverse Effect. The Company and its subsidiaries are in substantial
compliance with their respective obligations under such Licenses and
neither the Company nor any of its subsidiaries has received notice of any
proceedings, investigations or inquiries (or is aware of any facts that
would form a reasonable basis for any proceedings, investigations or
inquiries) relating to the revocation, modification, termination or
suspension of any such License or impairment of the rights of the Company
or such subsidiaries thereunder that, if determined adversely to the
Company or any of its subsidiaries, could individually or in the aggregate
have a Material Adverse Effect.
(xv) No labor dispute with the employees of the Company or any
subsidiary exists or, to the best knowledge of the Company, is imminent
that could, individually or in the aggregate, have a Material Adverse
Effect.
(xvi) The Company or one of its subsidiaries is the exclusive owner
of, or has obtained a valid license on commercially reasonable terms for,
all trademarks, trademark registrations, service marks, service xxxx
registrations, domain names, trade names, copyrights, copyright
registrations, patents, inventions, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, computer software, systems or procedures), confidential
information and any other intellectual property or rights described in the
Prospectus as being owned, licensed or used by the Company or any of its
subsidiaries or that are necessary for the conduct of their businesses as
described in the Prospectus (collectively, "INTELLECTUAL PROPERTY"), except
where the failure to be the exclusive owner of, or possess a valid license
for, the Intellectual Property could not have a Material Adverse Effect and
the Company is not aware of any claim (or of any facts that would form a
reasonable basis for any claim) to the contrary or any challenge by any
third party to the rights of the Company or any of its subsidiaries with
respect to any such Intellectual Property or to the validity or scope of
any such Intellectual Property or of any claim (or of any facts that would
form a reasonable basis for any claim) that such Intellectual Property
infringes any third party intellectual property. And neither the Company
nor any of its subsidiaries has any claim against a third party with
respect to the infringement by such third party to any Intellectual
Property that, if determined adversely to the Company or any of its
subsidiaries, could individually or in the aggregate have a Material
Adverse Effect. The Company and its subsidiaries have a good faith belief
in the distinctiveness and enforceability of all trademarks, service marks
and trade names and in the validity and enforceability of all patents
included in the Intellectual Property. The Intellectual Property includes
all intellectual property and similar rights necessary or advisable for the
conduct of the business of the Company as now conducted and described in
the Prospectus or as planned to be conducted.
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(xvii) To the best knowledge of the Company, the properties, assets
and operations of the Company and its subsidiaries are in compliance with
all applicable federal, state, local and foreign environmental laws, rules
and regulations, orders, decrees, judgments, permits and licenses relating
to public and worker health and safety, and to the protection and clean-up
of the natural environment and to the protection or preservation of natural
resources and of plant and animal species, and activities or conditions
related thereto, including, without limitation, those relating to the
production, extraction, processing, manufacturing, generation, handling,
disposal, transportation or release of hazardous materials (collectively,
"ENVIRONMENTAL LAWS"). With respect to such properties, assets and
operations (including any previously owned, leased or operated properties,
assets or operations with respect to such prior period of ownership or
operation), there are no past, present or, to the best knowledge of the
Company, reasonably anticipated future events, conditions, circumstances,
activities, practices, incidents, actions or plans of the Company or any of
its subsidiaries that may interfere with or prevent compliance or continued
compliance by the Company and its subsidiaries with applicable
Environmental Laws. To the best knowledge of the Company, neither the
Company nor any of its subsidiaries is the subject of any federal, state,
local or foreign investigation. Neither the Company nor any of its
subsidiaries has received any notice or claim (or is aware of any facts
that would be expected to result in any such claim), nor entered into any
negotiations or agreements with any third party, relating to any liability
or potential liability or remedial action or potential remedial action
under Environmental Laws, nor are there any pending, reasonably anticipated
or, to the best knowledge of the Company, threatened actions, suits or
proceedings against or affecting the Company, any of its subsidiaries or
their properties, assets or operations in connection with any such
Environmental Laws. The term "HAZARDOUS MATERIALS" shall mean those
substances that are regulated by or form the basis for liability under any
applicable Environmental Laws.
(xviii) Except as disclosed in the Prospectus, there are no pending
actions, suits, proceedings or investigations against or affecting the
Company, any of its subsidiaries or any of their respective properties,
assets or operations that, if determined adversely to the Company or any of
its subsidiaries, could individually or in the aggregate have a Material
Adverse Effect, or could materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Offered Securities;
and no such actions, suits, proceedings or investigations are threatened
or, to the Company's best knowledge, contemplated.
(xix) The financial statements and related schedules and notes
included in each Registration Statement and the Prospectus (including,
without limitation, the financial statements incorporated by reference
therein) comply with the requirements of the Act and the Rules and
Regulations, present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis.
The other financial information and statistical data set forth in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included in the Registration Statements. The pro forma
financial statements and other pro forma financial information included in
the Prospectus present fairly the information shown therein, have been
prepared in accordance with the applicable accounting requirements of Rule
11-02 of Regulation S-X of the Rules and Regulations, have been compiled on
the pro forma basis described therein and, in the opinion of the Company,
the assumptions used provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or events
reflected therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(xx) Since the dates as of which information is given in each
Registration Statement and the Prospectus, (A) neither the Company nor any
of its subsidiaries has incurred any material liability or obligation
(indirect, direct or contingent) or entered into any material, verbal or
written agreement or
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other transaction that is not in the ordinary course of business or that
could result in a material reduction in the future earnings of the Company;
(B) there has been no material change, except as contemplated by the
Prospectus, in the indebtedness of the Company, no change in the capital
stock of the Company and no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock; and (C)
there has been no change which, individually or in the aggregate, could
have a Material Adverse Effect.
(xxi) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(xxii) Except as disclosed in the Prospectus, there are no outstanding
(A) securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (B) warrants, rights or
options to subscribe for or purchase from the Company any such capital
stock or any such convertible or exchangeable securities or obligations or
(C) obligations of the Company to issue such shares, any such convertible
or exchangeable securities or obligations, or any such warrants, rights or
obligations.
(xxiii) Each "employee benefit plan" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), in
which employees of the Company or any subsidiary participate or as to which
the Company or any subsidiary has any liability (the "ERISA PLANS") is, to
the best knowledge of the Company, in compliance with the applicable
provisions of ERISA and the Internal Revenue Code of 1986, as amended (the
"CODE"). Neither the Company nor any subsidiary or any entity that,
together with the Company, is treated as a single employer under Section
414 of the Code, has maintained or contributed to any ERISA Plan that is
subject to Title IV of ERISA. Neither the Company nor any subsidiary has
any liability, whether or not contingent, with respect to any ERISA Plan
that provides post-retirement welfare benefits. There are no liabilities
with respect to any ERISA Plan or any stock or other incentive compensation
plan of the Company or any subsidiary which could individually or in the
aggregate have a Material Adverse Effect. No pending or, to the best
knowledge of the Company, threatened disputes, lawsuits or claims (other
than routine claims for benefits), investigations, audits or complaints to,
or by, any person or governmental authority have been filed or are pending
in connection with any ERISA Plan or any stock or other incentive
compensation Plan of the Company or any subsidiary.
(xxiv) The Company and its subsidiaries have filed on a timely basis
(subject to applicable filing extensions obtained by the Company and its
subsidiaries in accordance with applicable law) all federal, state, local
and foreign tax returns required to be filed, such returns are complete and
correct, and all taxes shown by such returns or otherwise assessed that are
due and payable have been paid, except such taxes as are being contested in
good faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company and its
subsidiaries in respect of any tax liability for any year not finally
determined are, to the best knowledge of the Company, adequate to meet
assessments or reassessments, if any, for additional taxes; and there has
been no tax deficiency asserted and the Company is not aware of any facts
that would form a reasonable basis for the assertion of any tax deficiency
against the Company or any of its subsidiaries that could individually or
in the aggregate have a Material Adverse Effect.
(xxv) The Company and its subsidiaries maintain a system of internal
accounting controls that the Company believes are sufficient for purposes
of the prevention or detection of errors or irregularities in amounts that
could be expected to be material to the Company's consolidated financial
statements and the recording of transactions so as to permit the
preparation of such consolidated financial statements in conformity with
generally accepted accounting principles.
(xxvi) Neither the Company nor any of its subsidiaries is in violation
of (A) its charter, by-laws
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or other organizational documents or (B) any applicable law, ordinance,
administrative or governmental or regulatory rule, regulation or any order,
decree or judgment of any court or governmental or regulatory agency or
body having jurisdiction over the Company or any subsidiary, except in the
case of clause (B) above for any such violations which could not,
individually or in the aggregate, have a Material Adverse Effect; and no
event of default or event that, but for the giving of notice or the lapse
of time or both, would constitute an event of default exists, or upon
consummation of the transactions contemplated by this Agreement or the
Prospectus, including, without limitation, the use of proceeds from the
sale of the Offered Securities in the manner contemplated by the
description under the caption "Use of Proceeds" contained in the Prospectus
will exist, under any indenture, mortgage, loan or credit agreement, note,
lease, permit, license or other agreement or instrument to which the
Company or any subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the properties, assets or operations
of the Company or any subsidiary is subject except as disclosed in the
Prospectus and as could not, individually or in the aggregate, have a
Material Adverse Effect. There are no statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statements or the Prospectus or to be filed as exhibits to the Registration
Statements that are not described or filed as required.
(xxvii) The Company and its subsidiaries carry or are entitled to the
benefits of insurance in such amounts as are customary in the businesses in
which they are engaged, and all such insurance is in full force and effect.
(xxviii) The Company has not taken, directly or indirectly, any action
designed to or that could cause or result in stabilization or manipulation
of the price of the Offered Securities to facilitate the sale or resale of
the Offered Securities.
(b) The Selling Stockholder represents and warrants to, and agrees with,
the several Underwriters that:
(i) The Selling Stockholder has been duly incorporated and is a
validly existing corporation in good standing under the laws of the State
of Nevada, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Selling
Stockholder is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not,
individually or in the aggregate, have a Material Adverse Effect.
(ii) The Selling Stockholder has and on each Closing Date hereinafter
mentioned will have valid and unencumbered title to the Offered Securities
to be delivered by the Selling Stockholder on such Closing Date and full
right, power and authority to enter into this Agreement and the Custody
Agreement (the "CUSTODY AGREEMENT") and Irrevocable Power of Attorney (the
"POWER OF ATTORNEY") entered into by the Selling Stockholder in connection
with the transactions contemplated hereby and to sell, assign, transfer and
deliver the Offered Securities to be delivered by the Selling Stockholder
on such Closing Date hereunder; and upon the delivery of and payment for
the Offered Securities on each Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Offered
Securities to be delivered by the Selling Stockholder on such Closing Date.
(iii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all respects to the requirements of the Act and the
Rules and Regulations and did not include 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 not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed or will conform, in all respects to the
requirements of the Act and the Rules and
8
Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery of
this Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, and on each Closing Date,
each Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all respects to
the requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional Registration
Statement has been or will be filed and (B) on each Closing Date, the
Initial Registration Statement and the Prospectus will conform in all
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences apply only to the extent that any statements in or
omissions from a Registration Statement or the Prospectus are based on
written information furnished to the Company by the Selling Stockholder
specifically for use therein.
(iv) This Agreement, the Custody Agreement and Power of Attorney have
each been duly authorized, executed and delivered by or on behalf of the
Selling Stockholder and this Agreement, the Custody Agreement and Power of
Attorney each constitute the legal, valid and binding obligations of the
Selling Stockholder enforceable against the Selling Stockholder in
accordance with their respective terms.
(v) No consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether acting in an
individual, fiduciary or other capacity) or any governmental or regulatory
agency or body or court is required to be obtained or made by the Selling
Stockholder for the consummation of the transactions contemplated by this
Agreement, the Custody Agreement or the Power of Attorney in connection
with the sale of the Offered Securities by the Selling Stockholder, except
such as have been obtained and made under the Act and such as may be
required under state securities laws.
(vi) The execution, delivery and performance by or on behalf of the
Selling Stockholder of this Agreement, the Custody Agreement and the Power
of Attorney and the consummation of the transactions contemplated herein
have been duly authorized by all necessary corporate action on the part of
the Selling Stockholder and, to the extent required, its stockholders and
do not and will not conflict with or result in a breach or violation of any
of the terms and provisions of, and do not and will not constitute a
default (or an event which with the giving of notice or the lapse of time
or both could reasonably be likely to constitute a default) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon the Offered Securities to be sold by the Selling Stockholder under (A)
the charter, by-laws or other organizational documents of the Selling
Stockholder, (B) any statute, any rule, regulation, requirement, order or
decree of any governmental or regulatory agency or body or any court,
domestic or foreign, having jurisdiction over the Selling Stockholder or
any of its properties, assets or operations, or (C) any indenture,
mortgage, loan or credit agreement, note, lease, permit, license or other
agreement or instrument to which the Selling Stockholder is a party or by
which the Selling Stockholder is bound or to which any of the properties,
assets or operations of the Selling Stockholder is subject, except in the
case of clause (C) above as could not, individually or in
9
the aggregate, have a Material Adverse Effect.
(vii) There are no contracts, agreements or understandings between the
Selling Stockholder and any third party that would give rise to a valid
claim against the Selling Stockholder or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
transactions contemplated by this Agreement, the Custody Agreement and the
Power of Attorney.
(viii) The Selling Stockholder has not taken, directly or indirectly,
any action designed to or that could cause or result in stabilization or
manipulation of the price of the Offered Securities to facilitate the sale
or resale of the Offered Securities.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and the Selling Stockholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
the Selling Stockholder, at a purchase price of $ [ ____ ] per share, the number
of Firm Securities set forth below the caption "Company" or "Selling
Stockholder", as the case may be, and opposite the name of such Underwriter in
Schedule A hereto.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholder hereunder have been placed in custody, for delivery
under this Agreement, under a Custody Agreement made with EquiServe Trust
Company, N.A., as custodian ("CUSTODIAN"). The Selling Stockholder agrees that
the shares represented by the certificates held in custody for the Selling
Stockholder under such Custody Agreement are subject to the interests of the
Underwriters hereunder, that the arrangements made by the Selling Stockholder
for such custody are to that extent irrevocable, and that the obligations of the
Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the liquidation and/or dissolution of the Selling Stockholder or the
occurrence of any other event. If the Selling Stockholder should be liquidated
and/or dissolved, or if any other such event should occur, before the delivery
of the Offered Securities hereunder, certificates for such Offered Securities
shall be delivered by the Custodian in accordance with the terms and conditions
of this Agreement as if such liquidation and/or dissolution or other event had
not occurred, regardless of whether or not the Custodian shall have received
notice of such liquidation and/or dissolution or other event.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by wire transfer to an account at a
bank acceptable to Credit Suisse First Boston Corporation ("CSFBC") drawn to the
order of the Company in the case of 2,500,000 shares of Firm Securities and to
the order of the Custodian in the case of 1,500,000 shares of Firm Securities,
at the office of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the Americas, Xxx Xxxx,
Xxx Xxxx 00000-0000, at 10:30 A.M., New York time, on August [ ____ ], 2001, or
at such other time not later than seven full business days thereafter as CSFBC
and the Company mutually determine, such time being herein referred to as the
"FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, the First Closing Date (if later than the otherwise applicable
settlement date) shall be the settlement date for payment of funds and delivery
of securities for all the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFBC requests and
will be made available for checking and packaging at the office of CSFBC, Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 at least 24 hours prior to the
First Closing Date.
In addition, upon written notice from CSFBC given to the Company and the
Selling Stockholder from time to time not more than 30 days subsequent to the
date of the Prospectus, the Underwriters may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
Firm Securities. The Selling Stockholder agrees to sell to the Underwriters the
number of shares of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased for the account of each
Underwriter in the same
10
proportion as the number of Firm Securities set forth opposite such
Underwriter's name bears to the total number of Firm Securities (subject to
adjustment by CSFBC to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the Firm Securities previously have been, or simultaneously
are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by CSFBC to the Company and the Selling Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Custodian will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Custodian, at the above office of Xxxxx Xxxxxxxxxx LLP. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of CSFBC at a reasonable time in advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDER. The
Company agrees with the several Underwriters and the Selling Stockholder and,
with respect to clauses (i), (j), (l), (m) and (n) below, the Selling
Stockholder agrees with the Company and the several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this Agreement
or (B) the fifteenth business day after the Effective Date of the Initial
Registration Statement. The Company will advise CSFBC promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to register
a portion of the Offered Securities under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the Company
will file the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make such
filing at such later date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to amend or
supplement the initial or any additional registration statement as filed or
the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not
effect such amendment or supplementation without CSFBC's prior consent; and
the Company will also advise CSFBC promptly of the effectiveness of each
Registration Statement (if the Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
11
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs or condition exists as
a result of which the Prospectus as then amended or supplemented would
include an 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 is
necessary at any time to amend the Prospectus to comply with the Act, the
Company will promptly notify CSFBC of such event and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
security holders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "AVAILABILITY DATE" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"AVAILABILITY DATE" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (three of which will be signed and will include all
exhibits and signed accountant's reports of KPMG LLP), each related
preliminary prospectus, and, so long as a prospectus relating to the
Offered Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, the Prospectus and all amendments
and supplements to such documents, in each case in such quantities as CSFBC
requests. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished as
soon as available. The Company and the Selling Stockholder will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission as required under the Securities Exchange Act of 1934, as
amended, or mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(h) The Company will apply the net proceeds of the Offering received
by the Company contemplated hereunder in the manner set forth in the
Prospectus under the caption "Use of Proceeds".
(i) The Company and the Selling Stockholder will each use their best
efforts to cause the Custodian to agree to deliver to CSFBC, attention:
Transactions Advisory Group on the Closing Date a letter stating that the
Custodian will deliver to the Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by
the United States Treasury Department regulations in lieu thereof) on or
before January 31 of the year following the date of this Agreement.
12
(j) The Company and the Selling Stockholder each agree with the
several Underwriters that the Company and the Selling Stockholder will pay
all expenses of the Company and the Selling Stockholder incident to the
performance of the obligations of the Company and the Selling Stockholder,
as the case may be, under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda relating
thereto, for the filing fee incident to the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the Offered
Securities, for any travel expenses of the Company's officers and employees
and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities, for
any transfer taxes on the sale by the Selling Stockholder of the Offered
Securities to the Underwriters and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(k) For a period of 90 days after the date of the public offering of
the Offered Securities, the Company will not, directly or indirectly,
offer, sell, contract to sell, pledge or otherwise dispose of, or file or
cause to be filed with the Commission a registration statement under the
Act relating to, any shares of its Securities or securities or other rights
convertible into or exchangeable or exercisable for any shares of its
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent of
CSFBC except for grants of employee stock options pursuant to the terms of
a plan in effect on the date hereof or issuances of Securities pursuant to
the exercise of such options or the sale of Securities pursuant to the
terms of an employee stock purchase plan in effect on the date hereof.
(l) The Selling Stockholder and the stockholders listed on EXHIBIT II
(collectively, the "XXX STOCKHOLDERS") each agree, for a period of 90 days
after the date of the public offering of the Offered Securities, not to,
directly or indirectly, offer, sell, contract to sell, pledge or otherwise
dispose of, or request or demand the filing with the Commission of a
registration statement under the Act relating to, any shares of Securities
of the Company or securities or other rights convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge
or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without, in
each case, the prior written consent of CSFBC.
(m) The Company and the Selling Stockholder will each use its best
efforts to cause the executive officers and directors of the Company to
agree that each such executive officer and director will not, directly or
indirectly, for a period of 90 days after the date of the public offering
of the Offered Securities, offer, sell, contract to sell, pledge or
otherwise dispose of, or request or demand the filing with the Commission
of a registration statement under the Act relating to, any shares of the
Securities of the Company or securities or other rights convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge
or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the Securities
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or enter
into any such transaction, swap, hedge or other arrangement, without, in
each case, the prior written consent of CSFBC.
(n) Neither the Company nor the Selling Stockholder will take,
directly or indirectly, any action designed to or that could cause or
result in stabilization or manipulation of the price of the Offered
Securities to facilitate the sale or resale of the Offered Securities.
13
(o) The Company will use its best efforts to effect the listing of the
Offered Securities on the Nasdaq Stock Market's National Market.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholder of their
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of KPMG LLP confirming that
they are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and schedules
audited by them and included in the Registration Statements or in the
material incorporated by reference into the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in the Registration Statements or in the material
incorporated by reference into the Prospectus;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial statements
of the Company, a reading of the minutes of all meetings of the
stockholders and directors (including any committee thereof) of the
Company and its subsidiaries, inquiries of officials of the Company
who have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited interim financial statements included in
the Registration Statements and the Prospectus do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or any material modifications should be made to such
unaudited interim financial statements for them to be in
conformity with generally accepted accounting principles;
(B) the information set forth in the Prospectus under the
captions "Summary Consolidated Financial and Operating Data" and
"Selected Consolidated Financial and Operating Data" does not
agree with the amounts set forth in the unaudited interim
consolidated financial statements or the audited consolidated
financial statements, as the case may be, from which it was
derived or were not determined on a basis substantially
consistent with that of the corresponding amounts in the
unaudited or audited statements, as applicable, included in the
Registration Statements and the Prospectus;
14
(C) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three days prior to the date of this Agreement, there was
any decrease in stockholders' equity or change in the capital
stock or any increase in long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or total assets, as compared with
amounts shown on the latest balance sheet included in the
Registration Statements and the Prospectus; or
(D) for the period from the closing date of the latest
income statement included in the Registration Statements and the
Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the
latest income statement included in the Registration Statements
and the Prospectus, in consolidated net revenues or operating
income or in the total or per share amounts of consolidated net
income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements and the Prospectus (in each
case to the extent that such dollar amounts, percentages, numerical
data and other financial information are derived from the general
accounting records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have found
such dollar amounts, percentages, numerical data and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "REGISTRATION STATEMENTS" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration Statement is subsequent to such execution and
delivery, "REGISTRATION STATEMENTS" shall mean the Initial Registration
Statement and the additional registration statement as proposed to be filed
or as proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall mean the
prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the Registration Statements
for purposes of this subsection.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by
CSFBC. If the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Prospectus
is printed and distributed to any Underwriter, or shall have occurred at
such later date as shall have been
15
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such
Closing Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the best knowledge of the Selling Stockholder,
the Company or the Representatives, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, results of operations, properties or general affairs of the
Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters including the Representatives, is material and
adverse to the Company and its subsidiaries taken as a whole and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or material limitation
of trading in securities generally on the New York Stock Exchange or the
Nasdaq Stock Market's National Market, or any setting of minimum prices for
trading on either such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Representatives shall have received an opinion, dated such
Closing Date, of Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx LLP, counsel
for the Company, to the effect that:
(i) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership, lease or operation of property or the conduct of
its business requires such qualification;
(ii) Each of the Company's domestic subsidiaries, other than
the Nevada Subsidiaries (as defined below), has been duly
incorporated and is a validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its
properties and to conduct is business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership, lease or operation of
property or the conduct of its business requires such qualification;
(iii) All of the issued and outstanding capital stock of each of
the Company's subsidiaries is owned by the Company, directly or
through subsidiaries, free and clear of any mortgage, pledge, lien,
security interest, claim, encumbrance or defect of any kind; and there
are no rights granted to or in favor of any third party (whether
acting in an individual, fiduciary or other capacity) other than the
Company to acquire any such capital stock, any additional capital
stock or any other securities of any subsidiary;
16
(iv) The Offered Securities delivered on such Closing Date by the
Company have been duly authorized and will be, when issued and paid
for in accordance with this Agreement, validly issued, fully paid and
nonassessable and the Offered Securities delivered on such Closing
Date by the Selling Stockholder have been duly authorized, validly
issued, fully paid and nonassessable; no further approval or authority
of the stockholders or the Board of Directors of the Company is or
will be required for the issuance and sale of the Offered Securities
as contemplated by this Agreement; the stockholders of the Company
have no statutory or other preemptive or similar rights with respect
to the Offered Securities or, to the best knowledge of such counsel,
any other securities of the Company; and all outstanding shares of the
capital stock of the Company have been duly authorized, are validly
issued, are fully paid and non-assessable and have been issued in
compliance with applicable federal and state securities laws; the
authorized and outstanding shares of capital stock of the Company
conform to the description thereof contained in the Prospectus;
(v) To the best knowledge of such counsel, except as disclosed in
the Prospectus, there are no contracts, agreements or understandings
between the Company and any third party (whether acting in an
individual, fiduciary or other capacity) granting such third party the
right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be
owned by such third party or to require the Company to include such
securities in the Offered Securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Act;
(vi) No consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether acting in
an individual, fiduciary or other capacity) or any governmental or
regulatory agency or body or any court is required to be obtained or
made by the Company or the Selling Stockholder for the consummation of
the transactions contemplated by this Agreement or the Custody
Agreement in connection with the issuance and sale of the Offered
Securities, except such as have been obtained and made under the Act
or with the NASD or the Nasdaq Stock Market's National Market and such
as may be required under state securities laws;
(vii) The execution, delivery and performance of this Agreement
or the Custody Agreement and the consummation of the transactions
herein or therein contemplated do not and will not conflict with or
result in a breach or violation of any of the terms and provisions of,
and do not and will not constitute a default (or an event which with
the giving of notice or the lapse of time or both could reasonably be
likely to constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets or
properties of the Company or any of its subsidiaries under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the assets or properties of the Company or any of its
subsidiaries under, and neither the Company nor any of its
subsidiaries is in violation of (A) the charter, by-laws or other
organizational documents of the Company or any subsidiary, (B) any
statute, rule or regulation or, to the extent known to such counsel,
any requirement, order or decree of any governmental, regulatory or
agency or body or any court having jurisdiction over the Company or
any subsidiary or any of their properties, assets or operations or (C)
any indenture, mortgage, loan or credit agreement, note, lease,
permit, license or other agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any
subsidiary is bound or to which any of the properties, assets or
operations of the Company is subject, which is known to such counsel
and any violation of which, individually or in the aggregate, could
have a Material Adverse Effect;
17
(viii) Except for options to purchase capital stock of the
Company outstanding pursuant to the terms of a plan in effect on the
date hereof as described in the Prospectus or rights to purchase
capital stock of the Company pursuant to the terms of an employee
stock purchase plan in effect on the date hereof, to the best
knowledge of such counsel, there are no outstanding (A) securities or
obligations of the Company convertible into or exchangeable for any
capital stock of the Company, (B) warrants, rights or options to
subscribe for or purchase from the Company any such capital stock or
any such convertible or exchangeable securities or obligations or (C)
obligations of the Company to issue such shares, any such convertible
or exchangeable securities or obligations, or any such warrants,
rights or obligations;
(ix) Except as disclosed in the Prospectus, there are no pending
or, to the best knowledge of such counsel, threatened actions, suits,
proceedings or investigations against or affecting the Company or any
of its subsidiaries or any of their respective properties, assets or
operations that could materially and adversely affect the ability of
the Company to perform its obligations under this Agreement or which
could, individually or in the aggregate, have a Material Adverse
Effect;
(x) The descriptions in the Registration Statements and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate in all material respects
and fairly present the information required to be shown and such
counsel does not know of any legal or governmental proceedings,
statutes, regulations, contracts or other documents that are required
by the Act to be described in the Registration Statements or the
Prospectus or to be filed as exhibits to the Registration Statements
that are not described or filed as required;
(xi) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Company;
(xii) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(xiii) To the best knowledge of such counsel, the Company and its
subsidiaries possess all Licenses issued by appropriate governmental
or regulatory agencies or bodies as are necessary to own, lease or
operate their properties and conduct their business as described in
the Prospectus, and all such Licenses are in full force and effect and
neither the Company nor any of its subsidiaries has received notice of
any proceedings, investigations or inquiries (or is aware of any facts
that would form a reasonable basis for any proceedings, investigations
or inquiries) relating to the revocation, modification, termination or
suspension of any such License or impairment of the rights of the
Company or such subsidiaries thereunder that, if determined adversely
to the Company or any of its subsidiaries, could individually or in
the aggregate have a Material Adverse Effect; and
(xiv) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best knowledge of such
counsel, no stop order suspending the effectiveness of a Registration
Statement or any part thereof has been issued and no
18
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations.
In addition, such counsel shall also state that it has participated in
conferences with representatives of the Underwriters, officers and
representatives of the Company and representatives of the independent
public accountants of the Company, at which conferences the contents of the
Registration Statements and the Prospectus and related matters were
discussed, and although such counsel does not pass upon and does not assume
any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statements and the Prospectus, on
the basis of the foregoing (relying as to materiality in part upon the
factual statements of officers and representations of the Company), no
facts have come to the attention of such counsel that cause such counsel to
believe that any part of a Registration Statement or any amendment thereto,
as of its effective date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its issue date or as of the
Closing Date, 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 the circumstances under which they were made, not
misleading (it being understood that such counsel need express no opinion
as to the financial statements and schedules or other financial or
statistical data contained in the Registration Statements and the
Prospectus).
Such opinion shall be to such further effect with respect to other
legal matters relating to this Agreement and the transactions contemplated
hereby as the Representatives and counsel to the Underwriters may
reasonably request.
(e) The Representatives shall have received an opinion, dated such
Closing Date, of [_______________], Canadian counsel for the Company, to
the effect that:
(i) Electronics Boutique Canada, Inc. ("EB Canada") has been duly
incorporated and is a validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; and each
of the Company and EB Canada is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership, lease or operation of property or the conduct of
its business requires such qualification;
(ii) No consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether acting in
an individual, fiduciary or other capacity) or any governmental or
regulatory agency or body or any court is required to be obtained or
made by the Company or EB Canada for the consummation of the
transactions contemplated by this Agreement or the Custody Agreement
in connection with the issuance and sale of the Offered Securities;
(iii) The execution, delivery and performance of this Agreement
or the Custody Agreement and the consummation of the transactions
herein or therein contemplated do not and will not conflict with or
result in a breach or violation of any of the terms and provisions of,
and do not and will not constitute a default (or an event which with
the giving of notice or the lapse of time or both could reasonably be
likely to constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets or
properties of the Company or EB Canada under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets or properties of the Company or EB Canada
19
under, and neither the Company nor EB Canada is in violation of (A) in
the case of EB Canada only, the charter, by-laws or other
organizational documents of EB Canada, (B) any statute, rule or
regulation or, to the extent known to such counsel, any requirement,
order or decree of any governmental, regulatory or agency or body or
any court having jurisdiction over the Company or EB Canada or any of
their respective properties, assets or operations or (C) to the best
knowledge of such counsel, any indenture, mortgage, loan or credit
agreement, note, lease, permit, license or other agreement or
instrument to which the Company or EB Canada is a party or by which
the Company or EB Canada is bound or to which any of the properties,
assets or operations of the Company or EB Canada is subject, except in
the case of clause (C) above, for such violations that could not,
individually or in the aggregate, have a Material Adverse Effect;
(iv) Except as disclosed in the Prospectus, there are no pending
or, to the best knowledge of such counsel, threatened actions, suits,
proceedings or investigations against or affecting the Company or EB
Canada or any of their respective properties, assets or operations
that could materially and adversely affect the ability of the Company
to perform its obligations under this Agreement or which could,
individually or in the aggregate, have a Material Adverse Effect; and
(v) To the best knowledge of such counsel, each of the Company
and EB Canada possesses all Licenses issued by appropriate
governmental or regulatory agencies or bodies as are necessary to own,
lease or operate their properties and conduct its business as
described in the Prospectus, and all such Licenses are in full force
and effect and neither the Company nor EB Canada has received notice
of any proceedings, investigations or inquiries (or is aware of any
facts that would form a reasonable basis for any proceedings,
investigations or inquiries) relating to the revocation, modification,
termination or suspension of any such License or impairment of the
rights of the Company or EB Canada thereunder that, if determined
adversely to the Company or EB Canada, could individually or in the
aggregate have a Material Adverse Effect.
(f) The Representatives shall have received an opinion, dated such
Closing Date, of [_______________], Australian counsel for the Company, to
the effect that:
(i) Electronics Boutique Australia Pty. Ltd. ("EB Australia") has
been duly incorporated and is a validly existing corporation in good
standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; and each
of the Company and EB Australia is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership, lease or operation of property or the conduct of
its business requires such qualification;
(ii) No consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether acting in
an individual, fiduciary or other capacity) or any governmental or
regulatory agency or body or any court is required to be obtained or
made by the Company or EB Australia for the consummation of the
transactions contemplated by this Agreement or the Custody Agreement
in connection with the issuance and sale of the Offered Securities;
(iii) The execution, delivery and performance of this Agreement
or the Custody Agreement and the consummation of the transactions
herein or therein contemplated do not and will not conflict with or
result in a breach or violation of any of the terms and provisions of,
and do not and will not constitute a default (or an event which with
the giving of notice or the lapse of time or both could reasonably be
likely to constitute a default) under, or result in
20
the creation or imposition of any lien, charge or encumbrance upon any
assets or properties of the Company or EB Australia under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the assets or properties of the Company or EB Australia under,
and neither the Company nor EB Australia is in violation of (A) in the
case of EB Australia only, the charter, by-laws or other
organizational documents of EB Australia, (B) any statute, rule or
regulation or, to the extent known to such counsel, any requirement,
order or decree of any governmental, regulatory or agency or body or
any court having jurisdiction over the Company or EB Australia or any
of their respective properties, assets or operations or (C) to the
best knowledge of such counsel, any indenture, mortgage, loan or
credit agreement, note, lease, permit, license or other agreement or
instrument to which the Company or EB Australia is a party or by which
the Company or EB Australia is bound or to which any of the
properties, assets or operations of the Company or EB Australia is
subject, except in the case of clause (C) above, for such violations
that could not, individually or in the aggregate, have a Material
Adverse Effect;
(iv) Except as disclosed in the Prospectus, there are no pending
or, to the best knowledge of such counsel, threatened actions, suits,
proceedings or investigations against or affecting the Company or EB
Australia or any of their respective properties, assets or operations
that could materially and adversely affect the ability of the Company
to perform its obligations under this Agreement or which could,
individually or in the aggregate, have a Material Adverse Effect; and
(v) To the best knowledge of such counsel, each of the Company
and EB Australia possesses all Licenses issued by appropriate
governmental or regulatory agencies or bodies as are necessary to own,
lease or operate their properties and conduct its business as
described in the Prospectus, and all such Licenses are in full force
and effect and neither the Company nor EB Australia has received
notice of any proceedings, investigations or inquiries (or is aware of
any facts that would form a reasonable basis for any proceedings,
investigations or inquiries) relating to the revocation, modification,
termination or suspension of any such License or impairment of the
rights of the Company or EB Australia thereunder that, if determined
adversely to the Company or EB Australia, could individually or in the
aggregate have a Material Adverse Effect.
(g) The Representatives shall have received an opinion, dated such
Closing Date, of [_______________], Danish counsel for the Company, to the
effect that:
(i) Each of Electronics Boutique Denmark Holdings ApS and
Electronics Boutique Denmark ApS (collectively, the "Danish
Subsidiaries") has been duly incorporated and is a validly existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus; and each of the Company and the Danish Subsidiaries is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership, lease or
operation of property or the conduct of its business requires such
qualification;
(ii) No consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether acting in
an individual, fiduciary or other capacity) or any governmental or
regulatory agency or body or any court is required to be obtained or
made by the Company or the Danish Subsidiaries for the consummation of
the transactions contemplated by this Agreement or the Custody
Agreement in connection with the issuance and sale of the Offered
Securities;
(iii) The execution, delivery and performance of this Agreement
or the Custody
21
Agreement and the consummation of the transactions herein or therein
contemplated do not and will not conflict with or result in a breach
or violation of any of the terms and provisions of, and do not and
will not constitute a default (or an event which with the giving of
notice or the lapse of time or both could reasonably be likely to
constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any assets or properties of
the Company or the Danish Subsidiaries under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the assets or properties of the Company or the Danish Subsidiaries
under, and neither the Company nor the Danish Subsidiaries is in
violation of (A) in the case of the Danish Subsidiaries only, the
charter, by-laws or other organizational documents of the Danish
Subsidiaries, (B) any statute, rule or regulation or, to the extent
known to such counsel, any requirement, order or decree of any
governmental, regulatory or agency or body or any court having
jurisdiction over the Company or the Danish Subsidiaries or any of
their respective properties, assets or operations or (C) to the best
knowledge of such counsel, any indenture, mortgage, loan or credit
agreement, note, lease, permit, license or other agreement or
instrument to which the Company or the Danish Subsidiaries is a party
or by which the Company or the Danish Subsidiaries is bound or to
which any of the properties, assets or operations of the Company or
the Danish Subsidiaries is subject, except in the case of clause (C)
above, for such violations that could not, individually or in the
aggregate, have a Material Adverse Effect;
(iv) Except as disclosed in the Prospectus, there are no pending
or, to the best knowledge of such counsel, threatened actions, suits,
proceedings or investigations against or affecting the Company or the
Danish Subsidiaries or any of their respective properties, assets or
operations that could materially and adversely affect the ability of
the Company to perform its obligations under this Agreement or which
could, individually or in the aggregate, have a Material Adverse
Effect; and
(v) To the best knowledge of such counsel, each of the Company
and the Danish Subsidiaries possesses all Licenses issued by
appropriate governmental or regulatory agencies or bodies as are
necessary to own, lease or operate their properties and conduct its
business as described in the Prospectus, and all such Licenses are in
full force and effect and neither the Company nor the Danish
Subsidiaries has received notice of any proceedings, investigations or
inquiries (or is aware of any facts that would form a reasonable basis
for any proceedings, investigations or inquiries) relating to the
revocation, modification, termination or suspension of any such
License or impairment of the rights of the Company or the Danish
Subsidiaries thereunder that, if determined adversely to the Company
or the Danish Subsidiaries, could individually or in the aggregate
have a Material Adverse Effect.
(h) The Representatives shall have received an opinion, dated such
Closing Date, of [_______________], Nevada counsel for the Company, to the
effect that:
(i) Each of EB Catalog Company, Inc. and EB Xxxxx.xxx, Inc.
(collectively, the "Nevada Subsidiaries") has been duly incorporated
and is a validly existing corporation in good standing under the laws
of the State of Nevada, with corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus; and each of the Company and the Nevada
Subsidiaries is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership,
lease or operation of property or the conduct of its business requires
such qualification;
(ii) No consent, approval, authorization, order, registration or
qualification of, or filing with, any third party (whether acting in
an individual, fiduciary or other capacity) or any governmental or
regulatory agency or body or any court is required to be obtained or
22
made by the Company or the Nevada Subsidiaries for the consummation of
the transactions contemplated by this Agreement or the Custody
Agreement in connection with the issuance and sale of the Offered
Securities;
(iii) The execution, delivery and performance of this Agreement
or the Custody Agreement and the consummation of the transactions
herein or therein contemplated do not and will not conflict with or
result in a breach or violation of any of the terms and provisions of,
and do not and will not constitute a default (or an event which with
the giving of notice or the lapse of time or both could reasonably be
likely to constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any assets or
properties of the Company or the Nevada Subsidiaries under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any of the assets or properties of the Company or the Nevada
Subsidiaries under, and neither the Company nor the Nevada
Subsidiaries is in violation of (A) in the case of the Nevada
Subsidiaries only, the charter, by-laws or other organizational
documents of the Nevada Subsidiaries, (B) any statute, rule or
regulation or, to the extent known to such counsel, any requirement,
order or decree of any governmental, regulatory or agency or body or
any court having jurisdiction over the Company or the Nevada
Subsidiaries or any of their respective properties, assets or
operations or (C) to the best knowledge of such counsel, any
indenture, mortgage, loan or credit agreement, note, lease, permit,
license or other agreement or instrument to which the Company or the
Nevada Subsidiaries is a party or by which the Company or the Nevada
Subsidiaries is bound or to which any of the properties, assets or
operations of the Company or the Nevada Subsidiaries is subject,
except in the case of clause (C) above, for such violations that could
not, individually or in the aggregate, have a Material Adverse Effect;
(iv) Except as disclosed in the Prospectus, there are no pending
or, to the best knowledge of such counsel, threatened actions, suits,
proceedings or investigations against or affecting the Company or the
Nevada Subsidiaries or any of their respective properties, assets or
operations that could materially and adversely affect the ability of
the Company to perform its obligations under this Agreement or which
could, individually or in the aggregate, have a Material Adverse
Effect; and
(v) To the best knowledge of such counsel, each of the Company
and the Nevada Subsidiaries possesses all Licenses issued by
appropriate governmental or regulatory agencies or bodies as are
necessary to own, lease or operate their properties and conduct its
business as described in the Prospectus, and all such Licenses are in
full force and effect and neither the Company nor the Nevada
Subsidiaries has received notice of any proceedings, investigations or
inquiries (or is aware of any facts that would form a reasonable basis
for any proceedings, investigations or inquiries) relating to the
revocation, modification, termination or suspension of any such
License or impairment of the rights of the Company or the Nevada
Subsidiaries thereunder that, if determined adversely to the Company
or the Nevada Subsidiaries, could individually or in the aggregate
have a Material Adverse Effect.
(i) The Representatives shall have received the opinion contemplated
in the Power of Attorney executed and delivered by the Selling Stockholder
and an opinion, dated such Closing Date, of _____________________, counsel
for the Selling Stockholder, to the effect that:
(i) The Selling Stockholder has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
State of Nevada, with corporate power and authority to own, lease and
operate its properties and conduct its business as presently
conducted; and the Selling Stockholder is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership, lease or operation of property
or the conduct of its business requires such qualification;
23
(ii) The Selling Stockholder had valid and unencumbered title to
the Offered Securities delivered by the Selling Stockholder on such
Closing Date and had full right, power and authority to enter into
this Agreement and the Custody Agreement and Power of Attorney entered
into by the Selling Stockholder in connection with the transactions
contemplated hereby and to sell, assign, transfer and deliver the
Offered Securities delivered by the Selling Stockholder on such
Closing Date hereunder; and upon the delivery of and payment for the
Offered Securities on such Closing Date the several Underwriters
acquired valid and unencumbered title to the Offered Securities
delivered by the Selling Stockholder on such Closing Date;
(iii) No consent, approval, authorization or order of, or filing
with, any third party (whether acting in an individual, fiduciary or
other capacity) or any governmental or regulatory agency or body or
any court is required to be obtained or made by the Selling
Stockholder for the consummation of the transactions contemplated by
this Agreement, the Custody Agreement or the Power of Attorney in
connection with the sale of the Offered Securities sold by the Selling
Stockholder, except such as have been obtained and made under the Act
or with the NASD or the Nasdaq Stock Market's National Market and such
as may be required under state securities laws;
(iv) The execution, delivery and performance by the Selling
Stockholder of this Agreement, the Custody Agreement and the Power of
Attorney and the consummation of the transactions contemplated therein
and herein have been duly authorized by all necessary corporate action
on the part of the Selling Stockholder and, to the extent required,
its stockholders and do not and will not conflict with or result in a
breach or violation of any of the terms and provisions of, and do not
and will not constitute a default (or an event which with the giving
of notice or the lapse of time or both could reasonably be likely to
constitute a default) under, or result in the creation or imposition
of any lien, charge or encumbrance upon the Offered Securities to be
sold by the Selling Stockholder under (A) the charter, by-laws or
other organizational documents of the Selling Stockholder, (B) any
statute, rule or regulation or, to the extent known to such counsel,
any requirement, order or decree of any governmental or regulatory
agency or body or any court, domestic or foreign, having jurisdiction
over the Selling Stockholder or any of its properties, assets or
operations, or (C) to the best knowledge of such counsel, any
indenture, mortgage, loan or credit agreement, note, lease, permit,
license or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or
to which any of the properties, assets or operations of the Selling
Stockholder is subject, except in the case of clause (C) above, for
such violations which could not individually or in the aggregate have
a material adverse effect on the sale of the Offered Securities or the
ability of the Selling Stockholder to perform its obligations under
the terms of this Agreement; and
(v) This Agreement, the Custody Agreement and Power of Attorney
have each been duly authorized, executed and delivered by or on behalf
of the Selling Stockholder and this Agreement, the Custody Agreement
and Power of Attorney each constitute the legal, valid and binding
obligations of the Selling Stockholder enforceable against the Selling
Stockholder in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to
the enforcement of creditors' rights and subject to general principles
of equity whether in a court of law or equity. Pursuant to the Power
of Attorney, the Selling Stockholder has authorized the
Attorneys-in-Fact, or any one of them, to execute and deliver on the
Selling Stockholder's behalf this Agreement and any other document
they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby and
to deliver the Offered Securities to be sold by the Selling
Stockholder pursuant to this Agreement.
24
(j) The Representatives shall have received from Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the Representatives
may require, and the Selling Stockholder and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(k) The Representatives shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: (A) the representations and warranties of the Company in this
Agreement are true and correct; (B) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; (C) no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or are
contemplated by the Commission; (D) the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any
Underwriter; (E) subsequent to the respective dates of the most recent
financial statements in the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, results of
operations, properties or general affairs of the Company and its
subsidiaries taken as a whole; and (F) they have carefully examined the
Registration Statements and the Prospectus and neither any Registration
Statement nor the Prospectus or any amendment or supplement thereto, as of
their respective effective or issue dates and as of such Closing Date,
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(l) The Representatives shall have received a letter, dated such
Closing Date, of KPMG LLP which meets the requirements of subsection (a) of
this Section, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
(m) On or prior to the date of this Agreement, the Representatives
shall have received lockup letters from each of the executive officers and
directors of the Company and the stockholders of the Company listed on
EXHIBIT II hereto.
(n) The Representatives shall have received such other customary
opinions, certificates, letters and other documents from or on behalf of
the Company or the Selling Stockholder as the Representatives shall
reasonably request.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof, only if they are reasonably satisfactory
in form and substance to CSFBC and counsel for the Underwriters. The Company and
the Selling Stockholder will furnish the Representatives with such conformed
copies of such opinions, certificates, letters and documents as the
Representatives reasonably request. CSFBC may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Company, the Selling
Stockholder and the Xxx Stockholders will jointly and severally indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any who controls such Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
25
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary 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, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Selling Stockholder 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 an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance 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 any Underwriter consists of the
information described as such in subsection (b) below and, provided further,
that the liability of the Selling Stockholder under this subsection (a) shall be
limited to an amount equal to the product of the purchase price per share as set
forth in Section 3 and the number of the Offered Securities to be sold by the
Selling Stockholder.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers, the Selling Stockholder, the
Xxx Stockholders and each person, if any, who controls the Company within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company, its directors and officers, the Selling
Stockholder, the Xxx Stockholders and such persons who control the Company
within the meaning of the Act may become subject, under the 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 statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company, the Selling
Stockholder and the Xxx Stockholders in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the information appearing in
the fourth paragraph under the caption "Underwriting" with respect to concession
and reallowance figures and the information contained in the ninth paragraph
under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
26
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company, the
Selling Stockholder and the Xxx Stockholders on the one hand and the
Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, the
Selling Stockholder and the Xxx Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the Selling Stockholder and the Xxx Stockholders on the one hand and
the Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company, the Selling Stockholder and the Xxx Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters. 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, the Selling Stockholder, the Xxx Stockholders or the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company, the Selling Stockholder and the Xxx
Stockholders under this Section shall be in addition to any liability which the
Company, the Selling Stockholder and the Xxx Stockholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholder for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholder for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
27
non-defaulting Underwriter, the Company or the Selling Stockholder, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholder shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Company, the Selling
Stockholder, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the Underwriters
is not consummated for any reason other than solely because of the termination
of this Agreement pursuant to Section 8 or the occurrence of any event specified
in clause (iii), (iv) or (v) of Section 6(c), the Company and the Selling
Stockholder will, jointly and severally, reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
the Representatives, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000, Attention:
President and Chief Executive Officer, or, if sent to the Selling Stockholder,
will be mailed, delivered or telegraphed and confirmed to the Selling
Stockholder at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000,
Attention: President; provided, however, that any notice to an Underwriter
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. The Attorneys-in-Fact will act
for the Selling Stockholder in connection with such transactions, and any action
under or in respect of this Agreement taken by the Attorneys-in-Fact will be
binding upon the Selling Stockholder.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company and the Selling Stockholder hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement, the Custody Agreement or the Power of Attorney or the
28
transactions contemplated hereby or thereby.
29
If the foregoing is in accordance with the Representatives`
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholder, the Company and the several Underwriters in accordance with
its terms.
Very truly yours,
ELECTRONICS BOUTIQUE HOLDINGS CORP.
By:
----------------------------
Name:
Title:
SELLING STOCKHOLDER:
EB NEVADA INC.
By:
---------------------------
Name:
Title: Attorney-in-Fact
XXX STOCKHOLDERS:
By:
---------------------------
Name: Xxxxx X. Xxx
By:
---------------------------
Name: Xxxxx X. Xxx
30
TRUST OF XXXXX X. XXX
Dated December 31, 1987
By:
---------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By:
---------------------------
Name: Xxxx X. Xxx
Title: Trustee
By:
---------------------------
Name: Xxxx X.X. Xxxxxx
Title: Trustee
TRUST OF XXXXX X. XXX
Dated December 31, 1987
By:
---------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By:
---------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By:
---------------------------
Name: Xxxx X.X. Xxxxxx
Title: Trustee
31
TRUST OF XXXX X. XXX
Dated December 31, 1987
By:
---------------------------
Name: Xxxxx X. Xxx
Title: Trustee
By:
---------------------------
Name: Xxxx X. Xxx
Title: Trustee
By:
---------------------------
Name: Xxxx X.X. Xxxxxx
Title: Trustee
THE ELECTRONICS BOUTIQUE, INC.
By:
---------------------------
Name:
Title:
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANC OF AMERICA SECURITIES LLC
SWS SECURITIES, INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------------
Name:
Title:
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
32
SCHEDULE A
NUMBER OF FIRM SECURITIES TOTAL
TO BE SOLD BY NUMBER OF
--------------------------- FIRM SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDER PURCHASED
----------- ------- ----------- ---------------
Credit Suisse First Boston Corporation......................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated .........
Banc of America Securities LLC..............................
SWS Securities, Inc. .......................................
------- ------------ ---------------
Total...........................................
======= ============ ===============
33
EXHIBIT I
EB Investment Corp.
Electronics Boutique of America Inc.
EB Services Company, LLP
Elbo Inc.
EB Finance Inc.
EB Catalog Company, Inc.
XXXxxxx.xxx, Inc.
Electronics Boutique Canada, Inc.
EB International Holdings, Inc.
Electronics Boutique Korea, Inc.
Electronics Boutique Australia Pty Ltd.
Electronics Boutique Denmark Holdings ApS
Electronics Boutique Denmark ApS
Electronics Boutique Norway AS
E.B. International, Inc.
34
EXHIBIT II
Xxxxx X. Xxx
Xxxxx X. Xxx
Trust of Xxxxx X. Xxx
Trust of Xxxxx X. Xxx
Trust of Xxxx X. Xxx
The Electronics Boutique, Inc.
35
