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As filed with the Securities and Exchange Commission on October 7, 1998
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ELECTRONICS BOUTIQUE HOLDINGS CORP.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
51-0379406
(I.R.S. Employer Identification Number)
103 Foulk Road
Suite 202
Wilmington, DE 19803
(Address of principal executive offices)
1998 Equity Participation Plan
(Full Title of Plan)
John R. Panichello, Senior Vice President and Chief Financial Officer
c/o Electronics Boutique Holdings Corp.
103 Foulk Road
Suite 202
Wilmington, DE 19803
(Name and address of agent for service)
(302) 778-4778
(Telephone number, including area code, of agent for service)
------------------
Copies to:
Stephen T. Burdumy, Esquire
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
1401 Walnut Street
Philadelphia, Pennsylvania 19102
(215) 568-6060
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed Amount of
Title of Securities Amount to be Maximum Offering Maximum Aggregate Registration
to be Registered Registered (1) Price Per Share Offering Price Fee
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 1,599,133 $14.00 $22,387,862(2) $6,604(2)
Common Stock, par
value $.01 per share 500,867 $8.57(4) $4,292,431(3) $1,267(3)
Total 2,100,000 $26,680,293 $7,871
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement also registers such
additional number of shares of Common Stock as may become issuable as a
result of stock splits, stock dividends and the anti-dilution
provisions of the 1998 Equity Participation Plan.
(2) Pursuant to Rule 457(h)(1), computed based upon the price at which the
options may be exercised.
(3) Pursuant to Rule 457(c), computed based upon the average of the high
and low prices of the Registrant's Common Stock on the Nasdaq National
Market on October 2, 1998.
(4) Estimated solely for the purpose of calculating the registration fee.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Electronics Boutique Holdings
Corp. (the "Company" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), are incorporated by reference into this
Registration Statement on Form S-8 (this "Registration Statement"):
1. The Prospectus filed as part of Post-Effective
Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-48523)
filed with the Commission on July 28, 1998.
2. The Company's Quarterly Report on Form 10-Q for the
period ended August 1, 1998 filed with the Commission
on September 14, 1998.
3. The Company's Current Report of Form 8-K dated
October 2, 1998.
4. The description of the Company's common stock, $.01
par value per share (the "Common Stock") contained in
the Company's Registration Statement on Form 8-A
filed on July 9, 1998, including all amendments and
reports filed for the purpose of updating such
description.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15
(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the completion or termination of this offering shall be deemed to
be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained in a
document, all or a portion of which is incorporated or deemed to be incorporated
by reference herein, shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein
or in any other subsequently filed document, which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
The class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Partners of, and other attorneys associated with, Klehr,
Harrison, Harvey Branzburg & Ellers LLP, counsel to the Company, beneficially
own an aggregate of 20,650 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law authorizes corporations
to limit or eliminate the personal liability of directors to corporations and
their stockholders for monetary damages for breach of directors' fiduciary duty
of care. The duty of care requires that, when acting on behalf of the
corporation, directors must exercise an informed business judgment based on all
material information reasonably available to them. Absent the limitations
allowed under the Delaware statute, directors could be accountable to
corporations and their stockholders for monetary damages for conduct that does
not satisfy their duty of care. Although the statute does not change directors'
duty of care, it enables
<PAGE>
corporations to limit available relief to equitable remedies such as injunction
or rescission. The Registrant's Certificate of Incorporation (the "Certificate
of Incorporation") limits the liability of the Registrant's directors to the
Registrant or its stockholders to the fullest extent permitted by the Delaware
statute. Specifically, directors of the Registrant will not be personally liable
for monetary damages for breach of a director's fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Registrant and its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit. The
inclusion of this provision in the Certificate of Incorporation may have the
effect of reducing the likelihood of derivative litigation against directors and
may discourage or deter stockholders or management from bringing a lawsuit
against directors for breach of their duty of care, even though such an action,
if successful, might otherwise have benefitted the Registrant and its
stockholders. At present, there is no litigation or proceeding pending involving
a director of the Registrant as to which indemnification is being sought, nor is
the Registrant aware of any threatened litigation that may result in claims for
indemnification by any director.
The By-laws of the Registrant are silent with respect
to indemnification of directors.
The Registrant has directors and officers liability
insurance coverage and has entered into indemnification agreements with each of
its directors and executive officers.
Reference is made to Item 9 of this Registration
Statement for additional information regarding indemnification of directors and
officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
3.1* Certificate of Incorporation.
3.2* Bylaws.
4.1* 1998 Equity Participation Plan
5.1 Opinion of Klehr, Harrison, Harvey, Branzburg & Ellers LLP,
counsel to the Company, as to the legality of the securities
being registered hereby.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Klehr, Harrison, Harvey, Branzburg & Ellers LLP,
counsel to the Company (contained in Exhibit 5.1).
25 Powers of Attorney (see signature page).
</TABLE>
* Incorporated by reference to the Company's Registration Statement on
Form S-1, as amended (Registration No. 333-48523).
<PAGE>
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment hereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (a) (1)(i) and (a) (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the Certificate of Incorporation or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Chester, Commonwealth of Pennsylvania, on this
28th day of September, 1998.
ELECTRONICS BOUTIQUE HOLDINGS CORP.
BY: /s/ Joseph J. Firestone
-------------------------------------
Joseph J. Firestone, President,
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby appoints Joseph J. Firestone and John R. Panichello, and
each of them, as attorneys-in-fact, with full power of substitution in each, for
him or her in any and all capacities to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and their substitutes, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person, and hereby
ratifying and confirming all that said attorneys-in-fact, or their substitutes,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
<S> <C> <C>
/s/ James J. Kim Chairman of the Board September 28, 1998
- ---------------------------------------
James J. Kim
/s/ Joseph J. Firestone President, Chief Executive Officer and September 28, 1998
- --------------------------------------- Director
Joseph J. Firestone
/s/ Dean S. Adler Director September 28, 1998
- ---------------------------------------
Dean S. Adler
/s/ Susan Y. Kim Director September 28, 1998
- ---------------------------------------
Susan Y. Kim
/s/ Louis J. Siana Director September 28, 1998
- ---------------------------------------
Louis J. Siana
/s/ John R. Panichello Senior Vice President, Chief September 28, 1998
- --------------------------------------- Financial Officer and Chief
John R. Panichello Accounting Officer
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
<S> <C>
3.1* Certificate of Incorporation.
3.2* Bylaws.
4.1* 1998 Equity Participation Plan.
5.1 Opinion of Klehr, Harrison, Harvey, Branzburg & Ellers LLP,
counsel to the Company, as to the legality of the securities
being registered hereby.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Klehr, Harrison, Harvey, Branzburg & Ellers LLP,
counsel to the Company (contained in Exhibit 5.1).
25 Powers of Attorney (see signature page).
</TABLE>
* Incorporated by reference to the Company's Registration Statement on
Form S-1, as amended (Registration No. 333-48523).
<PAGE>
EXHIBIT 5.1
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October 6, 1998
(215) 568-6060
Electronics Boutique Holdings Corp.
931 South Matlack Street
West Chester, Pennsylvania 19382
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Electronics Boutique Holdings
Corp., a Delaware corporation (the "Company"), in connection with the
preparation of the Company's Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended
(the "Act"), on or about October 7, 1998. The Registration Statement relates
to the issuance of up to 2,100,000 shares of the Company's common stock, par
value $.01 per share (the "Shares"), pursuant to the Company's 1998 Equity
Participation Plan (the "Plan").
In connection with this opinion, we have examined and
relied upon the original or copies of (i) the Certificate of Incorporation
and the By-laws of the Company, (ii) minutes and records of the corporate
proceedings with respect to the issuance of the Shares, (iii) the Plan and
(iv) such other documents as we have deemed necessary as a basis for the
opinion hereinafter set forth.
In our examination, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified on photostatic copies
and the authenticity of the originals of such latter documents. As to any
facts material to the opinions expressed herein that were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and
others.
Members of our firm are admitted to the Bar in the
Commonwealth of Pennsylvania and we express no opinion as to the laws of any
other jurisdiction.
<PAGE>
Legal Opinion - S-8
October 6, 1998
Page 2
Based upon and subject to the foregoing, we are of the
opinion that the Shares, when issued in accordance with the terms of the
Plan, will be validly issued, fully paid and non-assessable.
This opinion is being furnished to you solely for your
benefit in connection with the Registration Statement and is not to be used,
circulated, quoted or referred to or relied upon for any other purpose without
our express written permission.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act, or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP
<PAGE>
EXHIBIT 23.1
<PAGE>
CONSENT OF INDEPENDENT AUDITORS
Board of Directors of
Electronics Boutique Holdings Corp.:
We consent to the incorporation by reference in this registration statement on
Form S-8 of Electronics Boutique Holdings Corp. of our report dated May
7,1998, with respect to the consolidated and combined balance sheets of the
Electronics Boutique Group as of February 1, 1997 and January 31, 1998, and
the related consolidated and combined statements of income, stockholders'
equity and cash flows for each of the years in the three-year period ended
January 31, 1998, which report appears in the Post-Effective Amendment No.1
to the Company's Registration Statement on Form S-1 filed with the Securities
and Exchange Commission on July 28, 1998.
/s/ KPMG Peat Marwick LLP
Philadelphia, Pennsylvania
October 2, 1998
