Exhibit 10.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of October 1, 2004,
by and among GameStop Corp., a Delaware corporation ("Buyer"), Barnes & Noble,
Inc., a Delaware corporation ("Barnes & Noble"), and B&N GameStop Holding Corp.,
a Delaware corporation and a wholly owned subsidiary of Barnes & Noble
("Seller," and together with Barnes & Noble, the "B&N Parties").
RECITALS
WHEREAS, Seller is the sole record and beneficial owner of 36,009,000
shares of Class B Common Stock, par value $.001 per share (the "Class B Common
Stock"), of Buyer, which 36,009,000 shares of Class B Common Stock constitute
all of the issued and outstanding shares of Class B Common Stock;
WHEREAS, Barnes & Noble and Seller desire to dispose of all of Seller's
shares of Class B Common Stock and that for various business purposes, such
complete disposition will be implemented by selling the Purchased Stock (defined
below) and distributing the balance of Seller's shares of Class B Common Stock
to the stockholders of Barnes & Noble as part of an overall plan or series of
interrelated transactions;
WHEREAS, Buyer desires to buy from Seller, and Seller desires to sell to
Buyer, 6,107,338 of the shares of the Class B Common Stock owned by Seller (the
"Purchased Stock");
WHEREAS, on or about the date hereof, Barnes & Noble is publicly disclosing
its intention to distribute Seller's remaining 29,901,662 shares of Class B
Common Stock to Barnes & Noble's stockholders in a dividend intended to be
tax-free under Section 355 ("Section 355") of the Internal Revenue Code of 1986,
as amended (the "Spin-Off");
WHEREAS, the management of Barnes & Noble has determined that the Spin-Off
will further substantial corporate business purposes because it will (1) enable
Barnes & Noble's management to focus more closely on its core business, (2)
reduce investor confusion, and (3) enhance Barnes & Noble's ability to utilize
its equity capital for (a) future acquisitions and (b) employee compensation;
and
WHEREAS, the management of Buyer has determined that the Spin-Off will
further substantial corporate business purposes because it will (1) enable
Buyer's management to focus more closely on its core business, (2) increase the
number of Buyer's shareholders and the number of Buyer's publicly traded shares,
(3) reduce investor confusion, and (4) enhance Buyer's ability to utilize its
equity capital for (a) potential equity offerings and equity-linked debt
offerings, (b) future acquisitions and (c) employee compensation.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein, and upon the terms and subject to the
conditions hereinafter set forth, the parties hereto hereby agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of this
Agreement, in consideration of an aggregate purchase price of $111,519,991.80,
consisting of $37,500,000 in cash (the "Cash Consideration") and a promissory
note in the form attached hereto as Exhibit A in the principal amount of
$74,019,991.80 (the "Note"), Seller hereby sells, assigns and transfers to Buyer
the Purchased Stock.
2. Deliveries. On the date hereof, (i) Seller shall deliver to Buyer a
certificate or certificates representing the Purchased Stock, together with
stock powers or other instruments of transfer duly endorsed in the name of
Buyer, and (ii) Buyer shall deliver to Seller (x) the Cash Consideration by wire
transfer of immediately available funds to an account or accounts designated by
Seller, (y) the duly executed Note, and (z) to the extent that the certificate
or certificates delivered pursuant to clause (i) above represents more shares
than the Purchased Stock, a certificate or certificates registered in the name
of Seller representing such excess shares of Class B Common Stock.
3. Representations and Warranties. (a) The B&N Parties hereby, jointly and
severally, represent and warrant to Buyer as follows:
(i) Each B&N Party is duly organized, validly existing and in good
standing under the laws of the State of Delaware, and each B&N Party has
the full right, power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereunder. This Agreement
has been duly and validly executed and delivered by each B&N Party and,
assuming the due execution and delivery of this Agreement by Buyer,
constitutes the legal, valid and binding obligation of such B&N Party,
enforceable against such B&N Party in accordance with its terms, subject to
all laws and rules of law including (x) those of general application
relating to bankruptcy, insolvency and the relief of debtors, and (y) those
governing specific performance, injunctive relief and other equitable
remedies.
(ii) The execution, delivery and performance by each B&N Party of this
Agreement and the consummation by each B&N Party of the transactions
contemplated hereby will not, with or without the giving of notice or the
lapse of time, or both, (x) violate any provision of law, rule or
regulation to which such B&N Party is subject, (y) violate any order,
judgment or decree applicable to such B&N Party, or (z) conflict with, or
result in a breach or default under any agreements or other instruments to
which such B&N Party is a party or by it or any of its properties or assets
are bound, except, in each case, for violations, conflicts, breaches or
defaults which in the aggregate would not have a material adverse effect on
the businesses, operations, assets, properties or financial condition of
such B&N Party or the consummation of the transactions contemplated under
this Agreement.
(iii) Seller is the sole record and beneficial owner of the Purchased
Stock, free and clear of all liens, claims, security and other interests,
pledges, mortgages, rights of first refusal, preemptive rights, transfer
restrictions, options, proxies, voting trusts and other encumbrances
("Liens"), other than Liens that may exist pursuant to Barnes & Noble's
Amended and Restated Credit and Term Loan Agreement, dated as of August 10,
2004, with Bank of America, N.A., as administrative agent, and the security
documents relating thereto, which permit the sale of the Purchased Stock
contemplated by this Agreement.
(iv) No consent, approval or authorization of, or filing with, any
governmental or regulatory authority or any other person or entity is
required in connection with the execution, delivery and performance by
Seller of this Agreement, except post-transaction filings pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
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(b) Buyer hereby represents and warrants to the B&N Parties as
follows:
(i) Buyer is duly organized, validly existing and in good
standing under the laws of the State of Delaware, and Buyer has the
full right, power and authority to execute and deliver this Agreement
and the Note and to consummate the transactions contemplated hereunder
and thereunder. This Agreement and the Note have been duly and validly
executed and delivered by Buyer, and, assuming the due execution and
delivery of this Agreement by the B&N Parties, this Agreement and the
Note constitute the legal, valid and binding obligations of Buyer,
enforceable against Buyer in accordance with their terms, subject to
all laws and rules of law including (x) those of general application
relating to bankruptcy, insolvency and the relief of debtors, and (y)
those governing specific performance, injunctive relief and other
equitable remedies.
(ii) The execution, delivery and performance by Buyer of this
Agreement and the Note and the consummation by Buyer of the
transactions contemplated hereby and thereby will not, with or without
the giving of notice or the lapse of time, or both, (x) violate any
provision of law, rule or regulation to which Buyer is subject, (y)
violate any order, judgment or decree applicable to Buyer, or (z)
conflict with, or result in a breach or default under any agreements
or other instruments to which Buyer is a party or by which it or any
of its properties or assets are bound, except, in each case, for
violations, conflicts, breaches or defaults which in the aggregate
would not have a material adverse effect on the businesses,
operations, assets, properties or financial condition of Buyer or the
consummation of the transactions contemplated under this Agreement and
the Note.
(iii) No consent, approval or authorization of, or filing with,
any governmental or regulatory authority or any other person or entity
is required in connection with the execution, delivery and performance
by Buyer of this Agreement and the Note, except post-transaction
filings pursuant to the Exchange Act.
(c) The representations and warranties set forth herein shall survive
the consummation of the transactions contemplated by this Agreement, and
shall terminate upon the full payment of the principal and interest due and
owing under the Note.
4. Further Assurances. At any time and from time to time after the date
hereof, the B&N Parties, on the one hand, and the Buyer, on the other hand,
shall, at the request of the other and at the expense of such requesting party,
execute and deliver any further instruments or documents and take all such
further action as shall be necessary, desirable or expedient to make effective
the consummation of the transactions contemplated hereby. The parties hereto
agree and acknowledge that the Separation Agreement between Barnes & Noble and
the Buyer, dated as of January 1, 2002, shall continue to be in full force and
effect following the Spin-Off, in accordance with its terms, and the parties
hereto shall fully cooperate in effecting the Spin-Off as tax free under Section
355.
5. Miscellaneous. (a) This Agreement and the Note constitute the sole
understanding of the parties with respect to the subject matter hereof and
supersede and cancel all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written, respecting such
subject matter.
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(b) No amendment or modification of this Agreement shall be binding
unless the same shall be in writing and duly executed by the parties
hereto, except that any of the terms and provisions of this Agreement may
be waived in writing at any time by the party which is entitled to the
benefits thereof. No waiver of any provision of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof.
(c) The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto; provided, however, that this Agreement may not be assigned
by any of the B&N Parties without the prior written consent of Buyer or by
Buyer without the prior written consent of the B&N Parties, except that any
of the B&N Parties may, at its discretion, assign this Agreement to any
direct or indirect wholly owned subsidiary of Barnes & Noble.
Notwithstanding anything to the contrary contained herein, Seller shall be
entitled to assign its rights under the Note in its sole and absolute
discretion.
(d) All notices and other communications under this Agreement must be
in writing and will be deemed to have been duly given or made as follows:
(i) if sent by registered or certified mail in the United States, return
receipt requested upon receipt, five business days after being so sent;
(ii) if sent by reputable overnight air courier, two business days after
being so sent; (iii) if sent by telecopy transmission, with a copy mailed
on the same day in the manner provided in clause (i) or (ii) above, when
transmitted and receipt is confirmed by telephone; or (iv) if otherwise
actually personally delivered, when delivered, and shall be sent or
delivered as follows:
If to the Buyer, to:
GameStop Corp.
2250 William D. Tate Avenue,
Grapevine, Texas 76051
Attention: David W. Carlson
Fax: (817) 424-2820
If to any B&N Party, to:
Barnes & Noble, Inc.
122 Fifth Avenue
New York, NY 10011
Attention: Larry Zilavy
Fax: (212) 807-6033
(e) This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of New York. Each of the parties
hereby irrevocably and unconditionally submits to the nonexclusive personal
jurisdiction of the Supreme Court of the State of New York sitting in New
York County and to the United States District Court for the Southern
District of New York, and any appellate court thereof in any action or
proceeding arising out of or relating to this Agreement or the Note or for
the recognition or enforcement of any judgment arising out of or relating
to this Agreement or the Note, and hereby waives any objection as to venue
and forum non
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conveniens with respect to any such actions brought in any of such courts.
Process in any such action or proceeding may be served by certified mail on
any party hereto anywhere in the world where such party is found and may
also be served upon any party in the manner provided for the service of
process under the laws of the State of New York or the laws of the place or
jurisdiction where such party is found.
(f) The section and paragraph headings contained in this Agreement are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
(g) All costs and expenses incurred in connection with this Agreement
and the transactions contemplated by this Agreement shall be the obligation
of the party incurring such costs and expenses.
(h) This Agreement may be executed in counterparts, each of which
shall be deemed an original and together which shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
GAMESTOP CORP.
By: /s/ David W. Carlson
-------------------------
David W. Carlson
Executive Vice President and
Chief Financial Officer
BARNES & NOBLE, INC.
By: /s/ Larry Zilavy
-------------------------
Larry Zilavy
Executive Vice President of Corporate Finance
and Strategic Planning
B&N GAMESTOP HOLDING CORP.
By: /s/ Larry Zilavy
-------------------------
Larry Zilavy
Executive Vice President of Corporate Finance
and Strategic Planning
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