Exhibit 10.1
RESTRICTED SHARE AGREEMENT
Issued Pursuant to the
Amended and Restated 2001 Incentive Plan
of GameStop Corp.
THIS RESTRICTED SHARE AGREEMENT ("Agreement"), effective as of _________,
20__ (the "Effective Date"), represents the grant of _______ shares of Class A
common stock, par value $.001 per share (the "Restricted Shares"), of GameStop
Corp. (the "Company"), to _______________ (the "Participant"), subject to the
terms and conditions set forth below and the provisions of the Amended and
Restated GameStop Corp. 2001 Incentive Plan adopted by the Company's Board of
Directors on May 14, 2003 and approved by the Company's stockholders on July 2,
2003 (the "Plan").
If there is any inconsistency between the terms of this Agreement (on the
one hand) and the terms of the Plan (on the other hand), the Plan's terms shall
completely supersede and replace the conflicting terms of this Agreement. All
capitalized terms shall have the meanings ascribed to them in the Plan, unless
specifically set forth otherwise herein. The parties hereto agree as follows:
1. Grant of Restricted Shares. The Company hereby grants to the Participant
_______ Restricted Shares, subject to the terms and conditions of the Plan and
this Agreement.
2. Vesting Period: (a) In General. Except as set forth in Section 5 below,
if the Participant's employment or service as a Director with the Company
terminates before the last vesting date set forth in this Agreement, all
Restricted Shares granted hereby that are unvested as of the date of termination
of employment or service as a Director of the Company shall be forfeited.
Subject to the terms of this Agreement and the Plan, Restricted Shares granted
hereby shall vest in equal annual installments on the ____ anniversaries of the
Effective Date. For the specified vesting to occur on any vesting date, the
Participant must be continuously employed by or serve as a Director of the
Company or any of its affiliates from the Effective Date through such vesting
date.
(b) No Partial Vesting. Except as set forth in Section 15 hereof, in no
event shall a Participant have any rights to the Restricted Shares granted
hereunder: (i) prior to the date such Shares vest pursuant to the vesting
schedule set forth above; or (ii) with respect to any partial Share.
3. Voting Rights. All Restricted Shares issued hereunder, whether vested or
unvested, shall have full voting rights accorded to outstanding Shares.
4. Dividend Rights. (a) Cash Dividends. The Participant shall be entitled
to receive any cash dividends paid with respect to Restricted Shares granted
hereunder.
(b) Non-Cash Dividends. Any Share dividends or other distributions or
dividends of property other than cash with respect to Restricted Shares granted
hereunder shall be subject to the same forfeiture restrictions and restrictions
on transferability as apply to the Restricted Shares with respect to which such
property was paid.
5. Nontransferability. The Restricted Shares granted hereby may not be
assigned or transferred (other than by will or the laws of descent and
distribution), pledged or sold, until such Shares have vested in accordance with
Section 2 hereof and except as provided in the Plan. No assignment or transfer
of any Restricted Shares in violation of this Section 5, whether voluntary or
involuntary, by operation of law or otherwise, except by will or the laws of
descent and distribution or as otherwise required by applicable law, shall vest
in the assignee or transferee any interest whatsoever.
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6. Termination : (a) Death. In the event a Participant dies while employed
by the Company or any of its affiliates, all restrictions set forth herein shall
lapse and any unvested Restricted Shares held by such Participant shall vest in
the estate of such Participant or in any person who acquired such Restricted
Shares by bequest or inheritance.
(b) Disability. In the event a Participant ceases to perform services of
any kind (whether as an employee or Director) for the Company or any of its
affiliates due to permanent and total disability, all restrictions set forth
herein shall lapse and all unvested Restricted Shares shall immediately vest in
the Participant, or his guardian or legal representative, as of the first date
of permanent and total disability (as determined in the sole discretion of the
Committee). For purposes of this Agreement, the term "permanent and total
disability" means the Participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months, and the permanence
and degree of which shall be supported by medical evidence satisfactory to the
Committee. Notwithstanding anything to the contrary set forth herein, the
Committee shall determine, in its sole and absolute discretion, (1) whether a
Participant has ceased to perform services of any kind due to a permanent and
total disability and, if so, (2) the first date of such permanent and total
disability.
7. Issuance of Restricted Shares. As soon as practicable after the date of
this Agreement, the Company shall cause to be transferred on the books of the
Company, Shares registered in the name of the Company, as nominee for the
Participant, evidencing the Restricted Shares covered by this Agreement;
provided, however, such Shares shall be subject to forfeiture to the Company
retroactive to the date of grant, if this Agreement is not duly executed by the
Participant and timely returned to the Company. Until the lapse or release of
all restrictions applicable to an Award of Restricted Shares, the share
certificates representing such Restricted Shares shall be held in custody by the
Company or its designee.
8. Administration. This Agreement and the rights of the Participant
hereunder are subject to all the terms and conditions of the Plan, as the same
may be amended from time to time, as well as to such rules and regulations as
the Committee may adopt for administration of the Plan. It is expressly
understood that the Committee is authorized to administer, construe, and make
all determinations necessary or appropriate to the administration of the Plan
and this Agreement, all of which shall be binding upon the Participant. Any
inconsistency between the Agreement (on the one hand) and the Plan (on the other
hand) shall be resolved in favor of the Plan.
9. Adjustments. The number of Restricted Shares granted hereby shall be
subject to adjustment in accordance with Section 9.9 of the Plan.
10. Exclusion from Pension Computations. By acceptance of the Restricted
Shares granted hereunder, the Participant hereby agrees that any income or gain
realized upon the receipt or disposition of the Shares is special incentive
compensation and shall not be taken into account, to the extent permissible
under applicable law, as "wages", "salary" or "compensation" in determining the
amount of any payment under any pension, retirement, incentive, profit sharing,
bonus or deferred compensation plan of the Company or any of its affiliates.
11. Amendment. The Committee may, with the consent of the Participant, at
any time or from time to time amend the terms and conditions of this grant of
Restricted Shares. In addition, the Committee may at any time or from time to
time amend the terms and conditions of this grant of Restricted Shares in
accordance with the Plan.
12. Notices. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be delivered
personally or by mail, postage prepaid, or overnight courier, addressed as
follows: if to the Company, at its office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attn: Human Resources, or at such other address as the Company by
notice to the Participant may designate in writing from time to time; and if to
the Participant, at the address shown below his or her signature below, or at
such other address as the Participant by notice to the Company may designate in
writing from time to time. Notices shall be effective upon receipt.
13. Withholding Taxes. The Company and any of its affiliates shall have the
right to withhold from wages or other amounts otherwise payable to the
Participant or otherwise require the Participant to pay, any federal, state,
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local or foreign income taxes, withholding taxes, or employment taxes required
to be withheld by law or regulations ("Withholding Taxes") arising as a result
of the grant of any Award, the vesting of Restricted Shares, the transfer of any
Restricted Shares, the making of an election under Section 83(b) (or any similar
provision) of the Internal Revenue Code of 1986 (the "Code"), or any other
taxable event occurring pursuant to the Plan or this Agreement. If,
notwithstanding the foregoing, the Participant shall fail to actually or
constructively make such tax payments as are required, the Company (or its
affiliates) shall, to the extent permitted by law, have the right to deduct any
such Withholding Taxes from any payment of any kind otherwise due to such
Participant or to take such other action as may be necessary to satisfy such
Withholding Taxes. In satisfaction of the requirement to pay Withholding Taxes
(but only if the Section 83(b) Election defined below has not been made with
respect to the Restricted Shares awarded hereunder), the Company, in its sole
discretion, may elect to satisfy the obligation for Withholding Taxes by
retaining a sufficient number of Restricted Shares that it would otherwise
deliver on a particular vesting date equal to the amount of any Withholding
Taxes due on such vesting date. Notwithstanding the foregoing discretion, the
Company shall satisfy the obligation for Withholding Taxes by retaining a
sufficient number of Restricted Shares that it would otherwise deliver on a
particular vesting date equal to the amount of any Withholding Taxes due on such
vesting date, unless the Participant has either (a) made the Section 83(b)
Election defined below or (b) provided the Company with written notice at least
30 days (or such lesser period as may be permitted by the Company in its sole
discretion) in advance of such vesting date that the Participant will pay the
Withholding Taxes in cash. For purposes of the preceding two sentences, where
the Company is to retain Shares to satisfy the obligation for Withholding Taxes,
the net amount of Shares to be delivered to the Participant on a vesting date
shall equal the total number of Shares otherwise deliverable to the Participant
on such vesting date (pursuant to Section 7 hereof), less such number of Shares
equal to the Fair Market Value of such Withholding Taxes (as determined in the
Committee's sole discretion).
14. Registration; Legend. The Company may postpone the issuance and
delivery of the Restricted Shares granted hereby until (a) the admission of such
Shares to listing on any stock exchange or exchanges on which shares of the
Company of the same class are then listed and (b) the completion of such
registration or other qualification of such Shares under any state or federal
law, rule or regulation as the Company shall determine to be necessary or
advisable. The Participant shall make such representations and furnish such
information as may, in the opinion of counsel for the Company, be appropriate to
permit the Company, in light of the then existence or non-existence with respect
to such Shares of an effective Registration Statement under the Securities Act
of 1933, as amended, to issue the Shares in compliance with the provisions of
that or any comparable act.
The Company may cause the following or a similar legend to be set forth on
each certificate representing Restricted Shares granted hereby unless counsel
for the Company is of the opinion as to any such certificate that such legend is
unnecessary:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO FORFEITURE
AND OTHER LIMITATIONS AND RESTRICTIONS AS SET FORTH IN A RESTRICTED SHARE
AGREEMENT ON FILE WITH THE COMPANY. IN ADDITION, THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE ACT, THE AVAILABILITY OF WHICH IS ESTABLISHED BY AN OPINION FROM
COUNSEL TO THE COMPANY.
15. Change in Control.
(a) In the event of the occurrence of a change in control of the Company (a
"Change in Control"), any unvested Restricted Shares granted hereunder shall
immediately vest. For purposes of this Agreement, a "Change in Control" shall be
deemed to occur if: (i) there shall have occurred a change in control of the
Company of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended, as in effect on the date hereof, whether or not the
Company is then subject to such reporting requirement, provided, however, that
the foregoing event shall not be deemed to be a Change in Control if immediately
prior to such transaction the Participant or an entity of which the Participant
is an
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executive officer, director or more than five percent equity holder is, directly
or indirectly, one of the new controlling parties; or (ii) the Company has
merged or consolidated with, or sold substantially all of its assets to, another
company, provided, however, that the foregoing event shall not be deemed to be a
Change in Control if immediately prior to such transaction the Participant is an
executive officer, director or more than five percent equity holder of the other
party to the transaction or of any entity directly or indirectly controlling
that party to the transaction. For purposes of the foregoing, the merger
transactions relating to the 2005 combination with Electronics Boutique Holdings
Corp. shall not constitute a "Change in Control."
(b) Notwithstanding the foregoing, if in the event of a Change in Control,
the successor company assumes or substitutes for the Restricted Shares granted
hereunder, then the vesting of such Restricted Shares shall not be accelerated
as described in Section 15(a) hereof. For the purposes of this Section 15(b),
the Restricted Shares granted hereunder shall be considered assumed or
substituted for if following the Change in Control, such Restricted Shares or
any award substituted therefor ("Substitute Award") confers the right to
purchase or receive, immediately prior to the Change in Control, the
consideration (whether Share, cash or other securities or property) received in
the transaction constituting the Change in Control by holders of Shares for each
Share held on the effective date of such transaction (and if holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares); provided, however, that if
such consideration received in the transaction constituting the Change in
Control is not solely common Share of the successor company, the Committee may,
with the consent of the successor company, provide that the consideration to be
received upon the vesting of the Restricted Shares granted hereunder or the
Substitute Award, for each Share subject thereto, will be solely common Share of
the successor company substantially equal in fair market value to the per share
consideration received by holders of Shares in the transaction constituting the
Change in Control. The determination of such substantial equality of value of
consideration shall be made by the Committee in its sole discretion and its
determination shall be conclusive and binding. Notwithstanding the foregoing, in
the event of a termination of the Participant's employment or service as a
Director in such successor company within twenty-four (24) months following such
Change in Control, the Restricted Shares granted hereunder or the Substitute
Award held by such Participant at the time of the Change in Control shall vest
as of the day preceding the date of termination unless the termination was made
by the successor company for cause. For purposes of this Agreement, "cause"
shall mean either (i) material failure by the Participant to perform his or her
duties (other than as a result of incapacity due to physical or mental illness)
during his or her employment or service as a Director with the Company after
written notice of such breach or failure and the Participant failed to cure such
breach or failure to the Company's reasonable satisfaction within five days
after receiving such written notice; or (ii) any act of fraud, misappropriation,
misuse, embezzlement or any other material act of dishonesty in respect of the
Company or its funds, properties, assets or other employees.
16. Section 83(b) Election. If the Participant makes the election
contemplated by Section 83(b) of the Code (a "Section 83(b) Election") (or any
similar provision of federal, state or local law) with respect to the Restricted
Shares awarded hereunder, the Participant shall provide the Company with a copy
of such election within 30 days after the date of this Agreement (or such
earlier date required by law) and otherwise comply with the provisions of this
Section 16. The Participant hereby agrees, as a condition precedent to any
issuance of Restricted Shares under this Agreement, that on or prior to the date
of filing of any Section 83(b) Election with respect to such Restricted Shares,
Participant shall satisfy the Company's Withholding Tax obligations with respect
to such Section 83(b) Election by tendering payment to the Company, in readily
available funds, of an amount equal to such Withholding Tax obligation (or enter
into such other arrangement as shall be acceptable to the Company to satisfy
such Withholding Tax obligation).
17. No Tax Advice. Participant hereby acknowledges that the Company has not
provided any specific tax advice to Participant in connection with his or her
participation in the Plan. Participant understands and acknowledges that the
Section 83(b) Election is valid only if made within 30 days after the date of
this Agreement. Participant will consult with his or her own tax advisors with
respect to any tax consequences relating to an award of Restricted Shares and
participation in the Plan.
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18. Miscellaneous.
(a) This Agreement shall not confer upon the Participant any right to
continuation of employment or service as a Director with the Company, nor shall
this Agreement interfere in any way with the Company's right to terminate the
Participant's employment or service as a Director at any time.
(b) The Participant shall become a stockholder of the Company with respect
to all Shares subject to the Agreement and shall have all of the rights of a
stockholder, including, but not limited to, the right to vote such Shares and
the right to receive distributions made with respect to such Shares; provided,
however, that any Shares distributed as a dividend or otherwise with respect to
any Restricted Shares as to which the restrictions have not yet lapsed shall be
subject to the same restrictions as such Restricted Shares and shall be
represented by book entry and held as prescribed in the Plan.
(c) This Agreement shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
(d) To the extent not preempted by federal law, this Agreement shall be
governed by, and construed in accordance with the laws of the State of Delaware.
(e) All obligations of the Company under the Plan and this Agreement, with
respect to the Restricted Shares granted hereunder, shall be binding on any
successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of the Company.
(f) The provisions of this Agreement are severable and if any one or more
provisions are determined to be illegal or otherwise unenforceable, in whole or
in part, the remaining provisions shall nevertheless be binding and enforceable.
(g) By accepting this Award or other benefit under the Plan, the
Participant and each person claiming under or through the Participant shall be
conclusively deemed to have indicated their acceptance and ratification of, and
consent to, any action taken under the Plan by the Company, the Board or the
Committee.
(h) The Participant, every person claiming under or through the
Participant, and the Company hereby waives to the fullest extent permitted by
applicable law any right to a trial by jury with respect to any litigation
directly or indirectly arising out of, under, or in connection with the Plan or
this Agreement.
19. Exculpation. The Restricted Shares granted hereunder and all documents,
agreements, understandings and arrangements relating hereto have been issued on
behalf of the Company by officers acting on its behalf and not by any person
individually. None of the officers, Directors or stockholders of the Company nor
the Directors, officers or stockholders of any affiliate of the Company shall
have any personal liability hereunder or thereunder. The Participant shall look
solely to the assets of the Company for satisfaction of any liability of the
Company in respect of the Restricted Shares granted hereunder and all documents,
agreements, understanding and arrangements relating hereto and will not seek
recourse or commence any action against any of the Directors, officers or
stockholders of the Company or any of the Directors, officers or stockholders of
any affiliate, or any of their personal assets, for the performance or payment
of any obligation hereunder or thereunder. The foregoing shall also apply to any
future documents, agreements, understandings, arrangements and transactions
between the parties hereto with respect to the Restricted Shares granted
hereunder.
20. Captions. The captions in this Agreement are for convenience of
reference only, and are not intended to narrow, limit or affect the substance or
interpretation of the provisions contained herein.
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IN WITNESS WHEREOF, the parties have executed this Restricted Share
Agreement as of the date set forth above.
GAMESTOP CORP.
By:
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Name:
Title:
ACCEPTED:
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Name
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Address
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City State Zip Code
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Social Security/ID Number
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