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As filed with the Securities and Exchange Commission on October 10, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ELECTRONICS BOUTIQUE HOLDINGS CORP.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
51-0308583
(I.R.S. Employer Identification Number)
931 MATLACK STREET
WEST CHESTER, PENNSYLVANIA 19382
(Address of principal executive offices)
2000 EMPLOYEE STOCK PURCHASE PLAN
2000 EQUITY PARTICIPATION PLAN
(Full titles of the Plans)
---------------------------
JOHN R. PANICHELLO, SENIOR VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
ELECTRONICS BOUTIQUE HOLDINGS CORP.
931 MATLACK STREET
WEST CHESTER, PENNSYLVANIA 19382
(Name and address of agent for service)
(610) 430-8100
(Telephone number, including area code, of agent for service)
Copies to:
STEPHEN T. BURDUMY, ESQUIRE
WILLIAM W. MATTHEWS, III, ESQUIRE
KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP
260 S. BROAD STREET
PHILADELPHIA, PENNSYLVANIA 19102-3163
(215) 568-6060
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum
Title of securities to be Amount to be offering price per Proposed maximum Amount of registration
registered registered(1) share(2) aggregate offering price(2) fee
-------------------------- ------------------ ----------------------- ------------------------- -----------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share issuable
under the 2000 Employee 1,000,000 $20.125/share $20,125,000 $ 5,313
Stock Purchase Plan
-------------------------- ------------------ ----------------------- ------------------------- -----------------------
Common Stock, par value
$.01 per share issuable 2,000,000 $20.125/share $40,250,000 $10,626
pursuant to the 2000
Equity Participation Plan
========================== ================== ======================= ========================= =======================
</TABLE>
1. Pursuant to Rule 416, this Registration Statement also registers an
indeterminable number of additional shares of Common Stock as may
hereafter be offered or issued as a result of stock splits, stock
dividends or similar transactions without consideration.
2. Based upon the average of the high and low trading prices of the
Registrant's Common Stock as reported by the NASDAQ National Market on
October 10, 2000, as estimated solely for the purpose of calculating
the registration fee in accordance with Rule 457(c) under the
Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to participants
in the 2000 Employee Stock Purchase Plan and/or 2000 Equity
Participation Plan as specified by Rule 428(b)(i) under the Securities
Act of 1933, as amended. Such documents are not required to be, and are
not being, filed by Electronics Boutique Holdings Corp. with the
Securities and Exchange Commission, either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule
424 under the Securities Act of 1933, as amended. Such documents,
together with the documents incorporated by reference herein pursuant to
Item 3 of Part II of this Registration Statement on Form S-8, constitute
a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended.
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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 "Registrant") with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act"), are incorporated by
reference into this Registration Statement on Form S-8:
1. The Registrant's Quarterly Report on Form 10-Q for
the period ended July 29, 2000, filed with the
Securities and Exchange Commission on September 9,
2000;
2. The Registrant's Quarterly Reports on Form 10-Q for
the quarter ended April 29, 2000, filed with the
Securities and Exchange Commission on June 13, 2000;
3. The Registrant's Annual Report on Form 10-K for the
fiscal year ended January 29, 2000, filed with the
Securities and Exchange Commission on April 28, 2000;
4. The Registrant's Current Reports on Form 8-K filed
with the Securities and Exchange Commission on
April 6, 2000 and April 25, 2000;
5. The Registrant's Proxy Statement on Schedule 14A
dated June 16, 2000; and
6. The description of Registrant's common stock, $.01
par value per share (the "Common Stock") contained in
the 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.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law authorizes corporations
to limit or eliminate the personal liability of the directors to corporation 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. 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
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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.
Exhibit No. Description
----------- -----------
3.1(1) Certificate of Incorporation
3.2(1) By-Laws
4.1 2000 Employee Stock Purchase Plan
4.2 2000 Equity Participation Plan
5.1 Opinion of Klehr, Harrison, Harvey, Branzburg & Ellers, LLP,
counsel to the Registrant, as to the legality of the
securities being registered hereby
23.1 Consent of KPMG 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)
----------
(1) Incorporated by reference to Registrant's Registration Statement on Form
S-1, as amended (Registration No. 333-48523).
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
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(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in this Registration Statement; and
(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;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed 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; and
(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.
(b) Filings incorporating subsequent Exchange Act documents by
reference
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 and each filing of the Plan's annual
report pursuant to Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in this
registration statement 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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or
controlling person of the registrant 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 registrant 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 whether such indemnification by it
is against public policy as expressed in the 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 of
1933, 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 on Form S-8 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of
West Chester, Commonwealth of Pennsylvania, on this 10th day of October,
2000.
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 of 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 Date
--------- ----- ----
<S> <C> <C>
--------------------------------------------
James J. Kim Chairman of the Board October 9, 2000
/s/ Joseph J. Firestone
--------------------------------------------
Joseph J. Firestone President, Chief
Executive Officer and Director October 9 2000
/s/ Dean S. Adler
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Dean S. Adler Director October 9, 2000
/s/ Susan Y. Kim
--------------------------------------------
Susan Y. Kim Director October 9, 2000
/s/ Louis J. Siana
--------------------------------------------
Louis J. Siana Director October 9, 2000
/s/ Stanley Steinberg
--------------------------------------------
Stanley Steinberg Director October 9, 2000
/s/ John R. Panichello
--------------------------------------------
John R. Panichello Senior Vice President, October 9, 2000
Chief Financial Officer
and Chief Accounting Officer
</TABLE>
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EXHIBIT INDEX
Exhibit
No. Description
------- -----------
4.1 2000 Employee Stock Purchase Plan
4.2 2000 Equity Participation Plan
5.1 Opinion of Klehr, Harrison, Harvey, Branzburg & Ellers, LLP,
counsel to the Registrant, as the legality of the securities
being registered hereby.
23.1 Consent of KPMG LLP.
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