EXHIBIT
10.1


 


AGREEMENT is made the 30th day of
January 2004


 


BETWEEN:


 


(1)                                           THE GAME GROUP  PLC
of Charter Court, Third Avenue, Southampton SO9 0AP England (“Game”),
a company incorporated under the laws of England and Wales with registered
number 875835;


 


(2)                                           THE ELECTRONICS BOUTIQUE, INCORPORATED of 931 South Matlack Street, West Chester, PA
19382, USA (“EBI”), a corporation incorporated under the laws of the
Commonwealth of Pennsylvania; and


 


(3)                                           EB SERVICES COMPANY, LLP of 931 South Matlack Street, West Chester, PA 19382 (“EBS”),
a limited liability partnership registered in the Commonwealth of Pennsylvania.


 


PRELIMINARY


 


(A)                              Game
(under its then name of Rhino Group plc) and EBI entered into written
agreements on 13 October 1995 (the “Services Agreement”) and on 7
November 1995 (the “Licence Agreement”). On 1
February 1997, with the consent of Game, EBI assigned its rights and
obligations under the Services Agreement to EBS. EBI guaranteed performance by
EBS of its obligations under the Services Agreement pursuant to a deed of
guarantee dated 24 January 1997 (the “Guarantee”).


 


(B)                                Game,
EBI and EBS have agreed to terminate the Services Agreement, the Guarantee, and
the Licence Agreement on and subject to the terms of this Agreement.


 


NOW
IT IS HEREBY AGREED as follows:


 


1.                        Definitions


 


1.1                                 Words and expressions the
meanings of which are defined in clause 1.1 of the Services Agreement shall
have the same respective meanings in this Agreement save where the context
otherwise requires or where another meaning is expressly conferred by this
Agreement.


 


1.2                                 In this Agreement (which
expression includes the Preliminary and the Schedule) the following words and
expressions have the following meanings:


 


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Claim: any action, cause of
action, proceedings, loss, costs, damages, penalties, compensation awards,
orders, liability, or expense of any nature howsoever and whenever incurred by,
suffered, or claimed against the relevant person;


 


EBHC: Electronics Boutique
Holdings Corp of 931 Matlack Street, West Chester, PA 19382, a corporation
incorporated under the laws of the State of Delaware (or any person which
succeeds to all or any material part of its business or assets as a result of a
merger or reorganisation);


 


EBI group: EBI, any person
which succeeds to all or any material part of its business or assets as a
result of a merger or reorganisation or amalgamation or scheme of
reconstruction, and its subsidiary undertakings from time to time, and
references to a “member of the EBI group” shall be construed accordingly;


 


EBI Related Person:


 


(i)                                     EBHC and any group undertaking of EBI, EBS,
or EBHC;


 


(ii)                                  any associated company of EBI or EBS;


 


(iii)                      Susan Y. Kim trust of 31
December 1987; John T. Kim trust of 31 December 1987; and David D.
Kim trust of 31 December 1987; James J. Kim; Agnes C. Kim;  Susan Y. Kim, John F. A. Earley and John T.
Kim as trustees of the “David D. Kim Trust”; John T. Kim, John F. A Earley and
Susan Y. Kim as trustees of the “John T. Kim Trust”, David D. Kim, John F. A.
Earley and Susan Y. Kim as trustees of the “Susan Y. Kim Trust”; and any
additional or successor trustee or trustees of any of the foregoing and EB
Nevada, Inc., a corporation organized under the laws of the State of Nevada of
2251A Renaissance Drive, Suite 4, Las Vegas, NV89119; and


 


(iv)                     any person controlled by (a) any
person who controls, or is a director or officer of, EBI or EBS or (b) any
person falling within paragraph (iii) of this definition or (c) an associate
(within the meaning of section 417(3)


 


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of the 1988 Act) of any person falling within
paragraph (iv)(a) or (b) of this definition;


 


Game
group:  Game and its subsidiary
undertakings from time to time and references to a “member of the Game group”
shall be construed accordingly;


 


Game
Related Person:


 


(i)                                     any group undertaking of Game;


 


(ii)                                  any associated company of Game; and


 


(iii)                      any person controlled by (a) any
person who controls, or is a director of, Game or (b) an associate (within the
meaning of section 417(3) of the 1988 Act) of any person who controls, or
is a director, of Game;


 


Guarantee:  as defined in Preliminary A;


 


Licence
Agreement:  as defined in Preliminary A;


 


Relevant
EBI Persons:  all those persons referred to in
clauses 2.5.1 to 2.5.6 (inclusive);


 


Relevant
Game Persons:  all those persons referred to in clauses
2.4.1 to 2.4.4 (inclusive);


 


Services
Agreement:
as defined in Preliminary A;


 


Settlement
Agreement: the
settlement agreement between Game (under its then name of The Electronics
Boutique plc), EBI, and EBS as attached to the order of Mr Justice Thomas dated
21 January 2002 in the High Court action number 110 of 2001;


 


Termination Date: 31
January 2004.


 


1.3                                 In this Agreement:


 


1.3.1                        “control” shall have the meaning set out in section 416 of
the Income and Corporation Taxes Act 1988 (the “1988 Act”) and/or the meaning set out in section 840 of
the 1988 Act (to the intent that if either applies or if both apply, control
shall be deemed to exist) and “controlled”
shall be construed accordingly;


 


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1.3.2                        “associated company” shall have the meaning set out in
section 416 of the 1988 Act (applying the definition of control as set out
in clause 1.3.1);


 


1.3.3                        “subsidiary” shall have the meaning set out in section 736
of the Companies Act 1985;


 


1.3.4                        “subsidiary
undertaking” and
“group undertaking” shall have the
meanings given to these expressions in sections 258 and 259 respectively of the
Companies Act 1985; and


 


1.3.5                        “director” includes “shadow director”,  both as defined in section 741 of the
Companies Act 1985;


 


and these meanings shall apply (mutatis mutandis) notwithstanding that
the object of their application is a US body corporate or partnership.


 


1.4                                 References to any statute or
statutory provision or order or regulation made thereunder shall include that
statute, provision, order or regulation as amended, modified, re-enacted or
replaced from time to time whether before or after the date hereof.


 


1.5                                 References to persons shall
include bodies corporate and unincorporated associations, partnerships and
individuals.


 


1.6                                 References to a Preliminary or
clause or the Schedule are, unless the context otherwise requires,
references to recitals or the Schedule to, or clauses of, this Agreement.


 


2.                        Termination of Services
Agreement and Guarantee


 


2.1                                 Pursuant to clause 14.3 of the
Services Agreement it is hereby agreed and declared that the Services Agreement
shall terminate on the Termination Date. 
Notwithstanding any provision of the Services Agreement, except to the
extent referred to or stated in this Agreement, all provisions of the Services
Agreement will cease to have effect as from the Termination Date.


 


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2.2                                 Notwithstanding the termination
of the Services Agreement under clause 2.1 of this Agreement, on the
Termination Date Game shall be liable to pay to EBS (or to its order):


 


2.2.1                        the balance of the fee payable
under clause 5.1 (a) of the Services Agreement in respect of Turnover for the
Year ending on 31 January 2004; and


 


2.2.2                        the bonus fee (if any) payable
under clause 5.1(b) of the Services Agreement in respect of the Profit for the
Year ending on 31 January 2004.


 


The Turnover and the Profit for the Year
ending on 31 January 2004 shall be calculated and verified, and the fees
payable under clause 2.2 of this Agreement shall be paid (and any necessary
part of it repaid), in accordance with the provisions of clauses 7.1 to 7.4 (inclusive)
and 8 of the Services Agreement (in all such clauses ignoring all references to
clause 7.5) save that (i) Game shall have no obligation to deliver management
accounts or copies of related working papers as referred to in clause 7.1 of
the Services Agreement; and (ii) the obligation to make the payment referred to
in clause 2.3 shall be ignored in the calculation of the Profit for the Year
ending on 31 January 2004.  Game
will use all reasonable endeavours to procure that its auditors issue the
certificate referred to in clause 7.4(c) of the Services Agreement in, or
substantially in, the form agreed between the parties.


 


2.3                                 In addition to the payments to
be made by Game under clauses 2.2 and 4.1, Game shall within 14 days of the
date of execution of this Agreement pay to EBS (or to its order) the sum of
US$15,000,000 (United States dollars fifteen million), such sum being in full
and final settlement of any payments which Game may have been liable to pay
under the Services Agreement.


 


2.4                                 Without prejudice to any right,
obligation or liability that arises under this Agreement, EBI and EBS hereby
waive, release and fully discharge, the following from all rights, obligations
and liabilities under the Services Agreement, whether past, current or future:


 


2.4.1                        Game;


 


2.4.2                        all other members of the Game
group;


 


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2.4.3                        all other Game Related Persons;
and


 


2.4.4                        all employees, officers,
directors, servants or agents of Game and/or of any other Game Related Person,
and/or of any other member of the Game group.


 


2.5                                 Without prejudice to any right,
obligation or liability that arises under this Agreement, Game hereby waives,
releases and fully discharges, the following from all rights, obligations and
liabilities under the Services Agreement, whether past, current or future:


 


2.5.1                        EBI;


 


2.5.2                        EBS;


 


2.5.3                        all other members of the EBI
group;


 


2.5.4                        all other EBI Persons;


 


2.5.5                        all other EBI Related Persons;
and


 


2.5.6                        all employees, officers,
directors, servants or agents of EBI, and/or of EBS, and/or of any other EBI
Related Person, and/or any other EBI Person, and/or of any other member of the
EBI group.


 


2.6                                 Without prejudice to the
generality of clause 2.5:


 


2.6.1                        EBI shall be released and
discharged from all its obligations under the Guarantee including, without
limitation, any obligation to provide access to any data or information; and


 


2.6.2                        EBI shall have no further
obligation to provide the Services.


 


2.7                                 The parties hereby agree and
declare that the Guarantee shall terminate on the Termination Date.


 


3.                        Termination
of Licence Agreement


 


3.1                                 Notwithstanding clause 11.1 of
the Licence Agreement, the Licence Agreement will not terminate on the
Termination Date, but will continue in force in accordance with its terms (as
varied by clause 3 of this Agreement).


 


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3.2                                 It is agreed by all parties that
the current clause 2 of the Licence Agreement shall be deleted and replaced by
the following wording:


 


“The Licensor hereby grants to the Licensee a non-transferable
royalty-free non-exclusive licence for the Licensee and members of its Group to
use the Trade Mark (except as a corporate name) in the course of the Business
in the Territory provided that such Trade Mark is solely used in respect of
those stores that were operated by the Licensee or members of its Group using
the Trade Mark on 31 January 2004.”


 


3.3                                 It is agreed by all the parties
that from the Termination Date, except for clauses 4, 5.2, 10, 11, and 12 of
the Licence Agreement (which will cease to apply as from the Termination Date) all
the provisions of the Licence Agreement will continue in force and effect.


 


3.4                                 It is agreed by all parties that
the Licence Agreement will terminate with immediate effect upon:


 


3.4.1                        31 January 2005; or


 


3.4.2                        any breach by Game of any of its
obligations under clauses 2.2, 2.3 and 4.1 of this Agreement which, if capable
of remedy, is not remedied within 10 days of written notice being served by, or
on behalf of, EBI on Game alleging a breach of this Agreement and setting out
the alleged breach in sufficient detail to enable it to be identified; or


 


3.4.3                        any material breach by Game of
this Agreement (except a breach of clauses 2.2, 2.3 and 4.1) which, if capable
of remedy, is not remedied within 10 days of written notice being served by, or
on behalf of, EBI on Game alleging a breach of this Agreement and setting out
the alleged breach in sufficient detail to enable it to be identified; or


 


3.4.4                        any breach by Game or any member
of its group of any of the material terms of the Licence Agreement which, if
capable of remedy, is not remedied within 10 days of written notice being
served by, or on behalf of, EBI on Game alleging a breach of the Licence
Agreement and setting out the alleged breach in sufficient detail to enable it
to be identified.


 


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3.5                                 It is agreed by all parties that
clause 17.2 of the Licence Agreement is hereby varied so that no notice need be
served on the residential address from time to time of the managing director
appointed pursuant to clause 9 of the Services Agreement.


 


3.6                                 If, after the date of this
Agreement, EBI or EBS believes that any member of the Game group is infringing
the provisions of the Licence Agreement as amended by this clause 3, they will,
before taking any other action (except for issuing a notice under clause
3.4.4), give notice of the alleged infringement to Game and give Game 10 days
from receipt of the notice in which to investigate and procure the cessation of
any infringing activity and only if Game fails to procure such cessation will
EBI or EBS be entitled to take further action.


 


     4.                        Payment
of EBI and EBS legal fees


 


4.1                                 Within 14 days of the execution
of this Agreement Game shall pay to EBS (or to its order) the additional sum of
US$282,322.22 (United States dollars two hundred and eighty two thousand three
hundred and 22 cents) which, in addition to previous payments that have already
been paid by Game to EBS on account of EBS’s claim for legal fees relating to
case no HC02C00791, are in full and final settlement of the dispute regarding
legal fees incurred by EBI and EBS in connection with Case No. HC02C00791 in
the High Court and Court of Appeal and Game’s claims for payment of offset
items totalling US$42,677.68 (United States dollars forty-two thousand, six
hundred and seventy seven and 68 cents).


 


4.2                                 The parties will take all steps
necessary to notify the court that the assessment of costs relating to Case No.
HC02C0079 has been settled on terms that each side bears its own costs in
relation to the assessment and to cause it to be discontinued.


 


5.                        Covenants


 


The provisions of the Schedule shall have
effect.


 


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6.                        Full
and Final Settlement


 


6.1                                 To the intent that this
Agreement shall be in full and final settlement, but without prejudice to any
right, obligation or liability that arises under this Agreement, Game
agrees with EBI (EBI holding the benefit on trust for itself and each Relevant
EBI Person) that Game hereby waives, releases and discharges and will procure
that all other members of the Game group will waive, release and discharge, all
and any Claims of any nature and in respect of any matter against one or more
Relevant EBI Persons that has or may have accrued to date, including, for the
avoidance of doubt and without limitation, any Claim under or in connection
with the Services Agreement, Guarantee, Settlement Agreement, or Licence
Agreement and/or in respect of the performance or alleged breach of any of such
person’s obligations contained in such agreements.  For the purposes of this Agreement Game shall not be regarded as
being in breach of its obligation under this clause 6.1 to procure a waiver,
release or discharge from any person if it indemnifies the Relevant EBI Person
against the relevant Claim.


 


6.2                                 To the intent that this
Agreement shall be in full and final settlement, but without prejudice to any
right, obligation or liability that arises under this Agreement, each
of EBI and EBS agrees with Game (Game holding the benefit on trust for itself
and each Relevant Game Person) that EBI and EBS hereby waive, release and
discharge, and will procure that  (a)
the EBI Related Persons referred to in paragraph (iii) of the definition
thereof and (b) all other Relevant EBI Persons except for (a) any other
Relevant EBI Person who is a natural person and (b) any EBI Related Persons
referred to in paragraph (iv) of that definition,  will waive, release and discharge, all and any Claims of any
nature and in respect of any matter against one or more Relevant Game Persons
that has or may have accrued to date, including for the avoidance of doubt and
without limitation, any Claim under or in connection with the Services Agreement,
Guarantee, Settlement Agreement, or Licence Agreement and/or in respect of the
performance or alleged breach of any of such person’s obligations contained in
such agreements.


 


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7.                        Payment


 


7.1                                 Notwithstanding any provisions
of the Services Agreement, the payments to be made by Game to EBS (or its
order) under clauses 2.2, 2.3 and 4.1 of this Agreement shall be paid by direct
credit transfer to the bank account(s) and designee(s) as EBS shall specify prior
to the due dates for payment.


 


7.2                                 If all or any part of such
payments are not paid on the due date, Game shall pay interest on the overdue
amount (both before and after any judgment) at a rate of two per cent. per
annum over the base rate from time of National Westminster Bank Plc (or its
successors) such interest to accrue from the due date of payment of the said
sum until the date on which payment is received by EBS.


 


7.3                                 All amounts to be paid by Game
under clauses 2 and 4 of this Agreement shall be paid in full without any
deduction or withholding other than as required by law and Game will not be
entitled to assert any credit, set-off or counterclaim against EBS, EBI, any
other member of the EBI group, or any other EBI Related Person in order to justify
withholding payment of any such amount in whole or in part.


 


7.4                                 If all or any part of any
payments due from EBS under clause 2 of this Agreement are not paid on the due
date, EBS shall pay interest on the overdue amount (both before and after any
judgment) at a rate of two per cent. per annum over the base rate from time of
National Westminster Bank Plc (or its successors) such interest to accrue from
the due date of payment of the said sum until the date on which payment is
received by Game.


 


7.5                                 All amounts (if any) to be paid
by EBS under clause 2 of this Agreement shall be paid in full without any
deduction or withholding other than as required by law and EBS will not be
entitled to assert any credit, set-off or counterclaim against Game, any other
member of the Game group, or any other Game Related Person in order to justify
withholding payment of any such amount in whole or in part.


 


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8.                        Authority


 


The persons executing this Agreement have been duly
authorised and empowered to do so on behalf of the respective parties hereto.


 


9.                        Confidentiality


 


9.1                                 Each of the parties to this
Agreement acknowledges that the other party will be issuing a press release and
making filings with applicable regulatory bodies describing the transactions
contemplated by this Agreement provided that with respect to the press releases
and filings to be issued upon signing of this Agreement, the parties agree to
cooperate and shall have the right to approve the form and content of the press
release of the others (such approval shall not be unreasonably withheld,
delayed or made conditional).


 


9.2                                 EBI and EBS shall be entitled to
disclose the information referred to in clause 9.1 to EBI group members and to
EBI Related Persons and Game shall be entitled to disclose such information to
other Game group members and to Game Related Persons.


 


9.3                                 EBI and EBS on the one hand and
Game on the other shall keep (and shall procure that members of their
respective groups shall keep) confidential all information which was disclosed
to the other pursuant to or for the purposes of the Services Agreement and the
Licence Agreement save for information which is already in the public domain
through no breach of any obligation of confidentiality or that is required by
any applicable law or regulation.


 


9.4                                 Each party may refer to this
Agreement and its terms in good faith and in the ordinary course of business
but not in a way or in terms that is disparaging to any other party.


 


10.                  Variations


 


This Agreement may be amended, modified, superseded
or cancelled and any of its terms, covenants, representations, warranties,
undertakings or conditions may be waived only by an instrument in writing
signed by (or by some person duly authorised by) all of the parties or, in the
case of a waiver, by the party waiving compliance.


 


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11.                  Waivers


 


11.1                           The failure of any party at any
time or times to require performance of any provision of this Agreement shall not
affect its right to enforce such provision at a later time.


 


11.2                           No waiver by any party of any
condition nor the breach of any term, covenant, representation, warranty or
undertaking contained in this Agreement, whether by conduct or otherwise, in
any one or more instances shall be deemed to be or construed as a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or deemed to be or construed as the waiver of the breach of any other
term, covenant, representation, warranty or undertaking in this Agreement.


 


12.                  Jurisdiction


 


12.1                           This Agreement shall be governed
by and construed in accordance with the laws of England. The parties submit to,
and agree that any dispute arising out of or in any way connected with this
Agreement shall be submitted to, the exclusive jurisdiction of the English
courts.


 


12.2                           Each of EBI and EBS hereby
irrevocably appoints Fladgate Fielder of 25 North Row, London W1K 6DJ
(Reference: Anthony Vaughan) as their agent for the service of process.  Service upon the agent shall be deemed
completed whether or not forwarded to or received by EBI and EBS.  If any process agent ceases to have an
address in England, the relevant party irrevocably agrees to appoint a new
process agent acceptable to Game and to deliver to Game within 15 business days
a copy of a written acceptance of appointment by the process agents.  Nothing contained in this Agreement shall
affect the right to serve process in any other manner permitted by law or the
right to bring proceedings in any other jurisdiction for the purposes of the
enforcement or execution of any judgment or other settlement in any other
courts.


 


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13.                  Miscellaneous


 


13.1                           If there is any conflict between
the express terms of this Agreement and the Settlement Agreement or this
Agreement and the Licence Agreement (as varied by clause 3 of this Agreement),
the express terms of this Agreement shall prevail.


 


13.2                           Game hereby agrees to indemnify
EBI and EBHC against any claims that may be made by J. Steinbrecher as a result
of his secondment to Game under an agreement dated 20 December 1995 which
arise as a result of any breach by Game or any other member of the Game group.  If EBI (which represents to Game that it is
not currently aware of any basis for such a claim being made) becomes aware of
any such claim it shall promptly give notice to Game, allow Game conduct of any
such claim and give Game such assistance as it reasonably requires to defend
such claim.


 


14.                  Notices


 


14.1                           Any notice to be served pursuant
to or in connection with this Agreement shall be in writing and may be made by
letter.  Any such notice shall be deemed
to be given when delivered personally or on actual receipt/ if sent by pre-paid
airmail 3 business days from the time of posting.


 


14.2                           In proving such service it shall
be sufficient to prove that the notice was properly addressed and left at or
posted by airmail to the place to which it was so addressed.


 


14.3                           The address of each party for
all notices in connection with this Agreement is:


 


14.3.1                  EBI


 


c/o Electronics Boutique Holdings Corp


931 South Matlack Street, West Chester, PA 19382


Attention:                                                     Jeff Griffiths


Tel:  + 1610 430 8100


 


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With copies to:


 


Anthony Vaughan


Fladgate Fielder


25 North Row


London W1K 6DJ; and


 


Leonard M Klehr


Klehr, Harrison, Harvey, Branzburg & Ellers LLP


260 South Broad Street


Philadelphia


PA 19102-5003


 


14.3.2                  EBS


 


Electronics Boutique Holdings Corp


931 South Matlack Street, West Chester, PA 19382


Attention:  Jeff Griffiths


Tel: + 1610 430 8100


 


With copies to:


 


Anthony Vaughan


Fladgate Fielder


25 North Row


London W1K 6DJ; and


 


Leonard M Klehr


Klehr, Harrison, Harvey, Branzburg & Ellers LLP


260 South Broad Street


Philadelphia


PA 19102-5003


 


14.3.3                  Game


 


The Game Group plc


Charter Court, Third Avenue, Southampton SO9 0AP


Attention: 
Martin Long


Tel:  01344
464050


 


With a copy to:


 


Stephen Dobson


Speechly Bircham


6 St Andrew Street


London


EC4A 3LX


 


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14.4                           Each party may notify the other
of a different address for service of notice by notice to the other parties in
accordance with this clause 14.


 


15.                  Entire
Agreement


 


15.1                           This Agreement represents the
entire agreement and understanding of Game, EBI and EBS on the subject matter
hereof and sets aside all previous agreements, negotiations and discussions
between those parties relating to such subject matter. This Agreement may not
be modified or amended except by written agreement signed by the duly
authorised representatives of each of the parties hereto.


 


15.2                           Each of the parties acknowledges
that, in entering into this Agreement, it does not rely on and will have no
remedy in respect of, any statement, representation, warranty or understanding
(whether negligently or innocently made) of any person (whether a party to this
agreement or not) other than as expressly set out in this agreement.  The only remedy available to it will be for
breach of contract under the terms of this Agreement.  Nothing in this clause 15.2 will, however, operate to limit or
exclude any liability for fraud.


 


16.                  Contracts
(Rights of Third Parties) Act 1999


 


16.1                           Clauses 2.4 and 6.2 of, and the
Schedule to, this Agreement (other than paragraph 3 of the Schedule) are
for the benefit of those persons referred to in clauses 2.4.1 and 2.4.4, who
may enforce any of the provisions of such clauses and the Schedule (other
than paragraph 3 of the Schedule) of this Agreement pursuant to the Contracts
(Rights of Third Parties) Act 1999. Notwithstanding the aforesaid, the consent
of any such person other than Game shall not be required to any modification or
proposed modification to this Agreement.


 


16.2                           Clauses 2.5 and 6.1 of, and the
Schedule to, this Agreement (other than paragraph 2 of the Schedule) are
for the benefit of those persons referred to in clauses 2.5.1 to 2.5.6
(inclusive), who may enforce any of the provisions of such clauses, and the
Schedule (other than paragraph 2 of the Schedule) of this Agreement
pursuant to the Contracts (Rights of Third Parties) Act 1999. Notwithstanding
the aforesaid, the consent of any such persons other than EBI


 


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and EBS shall not be required to any modification or proposed
modification to this Agreement.


 


16.3                           Subject to clauses 16.1 and
16.2, a person who is not a party to this Agreement shall not have any rights
under, or be able to enforce, this Agreement by virtue of the Contracts (Rights
of Third Parties) Act 1999.


 


17.                  Counterparts


 


This Agreement may be executed by facsimile and in counterpart. Such
counterparts, when taken together, shall form one document.


 


IN
WITNESS
whereof this Agreement has been executed by the parties hereto as a deed and is
intended to be and is hereby delivered on the date first before written


 


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Schedule


 


DEFINITIONS


 


1.                        For the purposes of this
Schedule:


 


1.1                                 “directly or
indirectly”  shall (without limiting the expression) mean either alone or
jointly with any other person, firm or body corporate and whether on the
relevant person’s own account or in conjunction with or on behalf of another or
others or as the holder of any interest in, or as director, officer, employee
or agent of, or consultant to, any other person, firm or body corporate;


 


1.2                                 “on-line retailing”  means
enabling customers based in the United Kingdom and Eire to purchase products or
other digital media (for delivery by download or otherwise);


 


1.3                                 “EBI Restricted Person” means:


 


1.3.1                        EBI and EBS and EBHC (including
any person which succeeds to all or any material part of the business or assets
of any such entity as a result of any merger, amalgamation or reorganisation or
scheme of reconstruction);


 


1.3.2                        any group undertaking of EBI, or
EBS, or EBHC (including any person which succeeds to all or any material part
of the business or assets of any such group undertaking as a result of any
merger or reorganisation or scheme of reconstruction);


 


1.3.3                        any associated company of EBI or
EBS;


 


1.3.4                        Susan Y. Kim Trust of 31
December 1987; John T. Kim Trust of 31 December 1987; and David D.
Kim trust of 31 December 1987. 
James J. Kim; Agnes C. Kim; 
Susan Y. Kim, John F. A. Earley and John T. Kim as trustees of the
“David D. Kim Trust”; John T. Kim, John F. A Earley and Susan Y. Kim as
trustees of the “John T. Kim Trust”, David D. Kim, John F. A. Earley and Susan
Y. Kim as trustees of the “Susan Y. Kim Trust”; and any additional or successor
trustee or trustees of any of the foregoing and EB Nevada, Inc., a corporation
organized


 


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under the laws of the State of Nevada of 2251A Renaissance Drive, Suite
4, Las Vegas, NV89119; and


 


1.3.5                        any person controlled by (a) any
person who controls, or is a director or officer of, EBI or EBS or (b) any
person falling within paragraph 1.3.4 of this definition or (c) an associate
(within the meaning of section 417(3) of the 1988 Act) of any person
falling within paragraph 1.3.5(a) or (b) of this definition.


 


2.                        EBI
and EBS restrictions


 


Subject to the provisions of paragraph 2.3
below, EBS undertakes (for itself, its partners in EB Service Company, LLP, and
its servants and agents) that it will not, and EBI undertakes (for itself, its
officers, servants and agents) that it will not, and that it will procure that
no EBI Restricted Person will:


 


2.1                                 until 1 February 2006:


 


2.1.1                        directly or indirectly make any
sales into the United Kingdom and Eire by any means whatsoever, including
without limitation (a) through or by means of any electronic medium, or (b) by
means of on-line retailing from a website or websites;


 


2.1.2                        target customers or potential
customers who are from inside the United Kingdom and Eire, specifically, for
re-direction via an internet link or re-directed URL to any other website which
carries on the business of retailing computer and video games and other related
products to customers inside the United Kingdom and Eire, whether or not owned
by EBI, EBS, an EBI Person or any other EBI Restricted Person;


 


2.1.3                        directly or indirectly carry on
or be or become concerned or interested (including without limitation as a
shareholder or under a management agreement) or, other than in an immaterial
respect, assist in any way, in any business which is in competition within the
United Kingdom and Eire with all or part of the business of the sale and/or
distribution of computer hardware, software and video games as such business is


 


 


18

















 


carried on within the United Kingdom and Eire by any member of the Game
group at the Termination Date;


 


2.1.4                        directly or indirectly enter
into any contractual arrangement with any person who is carrying on any
business which is in competition within the United Kingdom and Eire with all or
part of the business of the sale and distribution of computer hardware,
software and video games as such business is carried on within the United
Kingdom and Eire by any member of the Game group at the Termination Date where the
result of the contractual arrangement is likely to have a materially
prejudicial effect on the business of the Game group within the United Kingdom
and Eire;


 


2.1.5                        directly or indirectly within
the United Kingdom or Eire induce, solicit or entice any person from the
employment of Game or any other member of Game group or employ or engage any
person who is employed by Game or any other member of the Game group and in
each case who is a senior employee within the Game group (irrespective of
whether that person is a senior employee at the date of this Agreement or
subsequently becomes a senior employee). 
A “senior employee” for the
purpose of this Schedule is any person who is a store manager or occupies
a more senior management position;


 


2.1.6                        directly or indirectly:


 


(a)                                  solicit, initiate or respond to any approach made that seeks to
solicit or initiate a Transaction;


 


(b)                                 proceed with any due diligence, or continue or enter into
negotiations or any agreement or arrangement with anyone, relating to any Transaction;
or


 


(c)                                  engage any professional advisers or agents to do any of the
foregoing on behalf of EBS, EBI, EBHC or any EBI Restricted Person.


 


19

















 


In this paragraph 2.1.6 a “Transaction”
means:


 


(i)                         the possible acquisition by EBI, EBS, EBHC or any EBI Restricted
Person of any part of the share capital (whether existing or new issue) or
undertaking of (a) the holding company of the entity carrying on business in
France at the date of this Agreement under the name Micromania (believed to be
SFMI-Micromania SA number 327070 488 RCS Grasse (1983 B 00091) but whose
identity is to be confirmed to EBI no later than 1 March 2004) (“Micromania”))
or (b) any group undertaking of either Micromania (either at the date of this
Agreement or which becomes a group undertaking at any time prior to 1
February 2006) or of any person which succeeds to any part of the business
or assets of Micromania as a result of any merger, amalgamation or scheme of  reconstruction (the “Micromania group”);


 


(ii)                      participation with any member of the Micromania group or  Albert
Loridan  in
any joint venture, partnership, franchise or similar business association;


 


(iii)                   the provision of management services, know-how or other support or
services to a member of the Micromania group;


 


2.2                                 until 1 February 2005:


 


2.2.1                        directly
or indirectly induce, solicit or entice any person from the employment of Game
or any other member of the Game group or employ or engage any person who is
employed by Game or any other member of the Game group, in, or responsible for,
France or Spain and in each case who is a senior employee within the Game group
(irrespective of whether that person is a senior employee at the date of this
Agreement or subsequently becomes a senior employee);


 


20

















 


2.2.2                        directly
or indirectly carry on or be or become concerned or interested (including
without limitation as a shareholder or under a management agreement) or, other
than in an immaterial respect, assist in any way, in any business which is in
competition within France or Spain with all or part of the business of the sale
and/or distribution of computer hardware, software and video games as such
business is carried on within France or Spain by any member of the Game group
as at the Termination Date provided that the restriction in this paragraph
2.2.2 will not prohibit any sales and/ or distribution of computer hardware,
software, or computer games by means of on-line retailing from a website or
websites by a member of the EBI group which is both currently used for this
purpose and which does not have a domain name ending fr. or es. to customers
based in France or Spain; or


 


2.2.3                        directly or indirectly enter
into any contractual arrangements with any person who is carrying on any
business which is in competition within France or Spain with all or part of the
business of the sale and distribution of computer hardware, software and video
games as such business is carried on within France or Spain by any member of
the Game group at the Termination Date and where the result of the contractual
arrangement is likely to have a material prejudicial effect on the business of
the Game group within France or Spain.


 


2.3                                 The restrictions in paragraphs
2.1.1, 2.1.2, 2.1.3, 2.1.4, 2.1.5, 2.2.1, 2.2.2 and 2.2.3 shall not apply to an
Excluded Person and its Excluded Subsidiaries to the extent set out in
paragraph 2.3.3 below.


 


2.3.1                        An “Excluded Person” means a person:


 


2.3.1.1               who is not already
an EBI Restricted Person and who acquires or holds more than 50% of the voting
share capital of EBHC, whether alone or acting jointly with others (none of
whom is an EBI Restricted Person) pursuant to an arm’s length, bona fide
transaction; and


 


21

















 


2.3.1.2               who would not
otherwise be an EBI Restricted Person but for the shareholding referred to in
paragraph 2.3.2.1; and


 


2.3.1.3               who immediately
prior to the date of the acquisition or holding of more than 50 per cent of the
voting share capital of EBHC as referred to in paragraph 2.3.2.1 is carrying
out Relevant Business (as defined in paragraph 2.3.5 below) either itself or
through a subsidiary undertaking in (a) the United Kingdom and Eire and/or; (b)
France and/or; (c) Spain (each a “Territory”).


 


2.3.2                        If the Relevant Business is
carried on in:


 


•                  the United Kingdom and Eire, the restrictions in paragraphs 2.1.1,
2.1.2, 2.1.3, 2.1.4 and 2.1.5 shall not apply to the Excluded Person and its
Excluded Subsidiaries;


 


•                  France, the restrictions in paragraphs 2.2.1, 2.2.2 and 2.2.3 shall
not apply in respect of France to the Excluded Person and its Excluded
Subsidiaries;


 


•                  Spain, the restrictions in paragraphs 2.2.1, 2.2.2 and 2.2.3 shall
not apply in respect of Spain to the Excluded Person and its Excluded
Subsidiaries.


 


2.3.3                        An “Excluded Subsidiary”  is
any subsidiary undertaking of an Excluded Person that is not and never has been
a subsidiary undertaking of EBI, EBHC or EBS.


 


2.3.4                        “Relevant Business” means carrying on the business of the sale
and distribution of computer hardware, software and video games from 10 or more
stores in the relevant Territory in the 6 months prior to the date of the
acquisition or holding of more than 50% of the voting share capital of EBHC as
referred to in paragraph 2.3.2.1.


 


3.                        Game
restrictions


 


Game undertakes
(for itself, its officers, servants and agents) that it will not, and that it
will procure that no other member of the Game group will, until 1
February 2005:


 


22

















 


3.1                                 directly or indirectly carry on
or be or become concerned or interested 
(including without limitation as a shareholder or under a management
agreement), or, other
than in an immaterial respect, assist in any way, in any business which is in competition within
Italy or Germany with all or part of the business of the sale and distribution
of computer hardware, software and video games as such business is carried on
within Italy or Germany by EBI, any EBI Related Person, or any member of the
EBI group at the Termination Date provided that the restriction in this
paragraph 3.1 will not prohibit any sales and/ or distribution of computer
hardware, software, or computer games by means of on-line retailing from a
website or websites by a member of the Game group which is both currently used
for this purpose and which does not have a domain name ending de. or it. to
customers based in Germany or Italy; or


 


3.2                                 directly or indirectly enter
into any contractual arrangements with any person who is carrying on any
business which is in competition within Italy or Germany with all or part of
the business of the sale and distribution of computer hardware, software and
video games as such business is carried on within Italy or Germany by EBI, any
EBI Related Person, or any member of the EBI Group at the Termination Date and
where the result of the contractual arrangement is likely to have a material
prejudicial effect on the business of EBI, any EBI Related Person, or any
member of the EBI Group within Italy or Germany;


 


3.3                                 directly or indirectly induce,
solicit or entice any person from the employment of EBI, or any other member of
the EBI group or any other EBI Related Person or employ or engage any person
who is employed by EBI, or any other member of the EBI group or any other EBI
Related Person in, or responsible for, Italy or Germany and in each case  who is a senior employee within the EBI
group (irrespective of whether that person is a senior employee at the date of
this Agreement or subsequently becomes a senior employee).


 


3.4                                 Each of the covenants contained
in paragraphs 2 and 3 above is intended to be
separate and severable and enforceable as such.


 


23

















 


3.5                                 The parties consider the
respective periods of restriction specified in paragraphs 2 and 3 to be
reasonable, but in the event of a court of competent jurisdiction or other
competent authority determining any of them to be too long, the period of the
restriction concerned shall be deemed reduced to the period regarded by such
court or other authority as reasonable, and the covenant concerned shall be
read as having been amended to incorporate that reduced period in substitution
of the period stated in it and shall be enforceable as such.


 


3.6                                 The parties consider the
undertakings in paragraphs 2 and 3 to be reasonable in all the circumstances
but if any one or more of them should for any reason be held to be invalid but
would have been held to be valid if part of the wording thereof was deleted or
if part of the wording in any definition applicable to the wording thereof was
deleted in its application to this Schedule, the said undertakings shall apply
with the minimum modifications necessary to make them valid and effective.


 


3.7                                 The restrictions in this
schedule will not prevent any party (or any member of a group of any
party) from holding shares which confer in aggregate not more than 3 per cent
of the voting or economic rights in a company the shares of which are publicly
traded.


 


3.8                                 No act, default or omission by
any person will be a breach of this Schedule unless the effects of such
act, default or omission are material.


 


24

















 


	
  Executed as a deed by

  	
   

  
	
   

  	
   

  
	
  THE GAME GROUP PLC

  	
   

  
	
   

  	
   

  
	
  acting by

  	
  /s/

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Director/Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  Executed as a deed by

  	
   

  
	
   

  	
   

  
	
  THE ELECTRONICS

  	
   

  
	
   

  	
   

  
	
  BOUTIQUE, INCORPORATED

  	
   

  
	
   

  	
   

  
	
  in accordance with its constitution and

  	
   

  
	
   

  	
   

  
	
  the laws of its state of incorporation

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
  /s/

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Secretary

  
	
   

  	
   

  
	
  Executed as a deed by

  	
   

  
	
   

  	
   

  
	
  EB SERVICES COMPANY LLP

  	
   

  
	
   

  	
   

  
	
  in accordance with its limited partnership
  agreement and

  
	
   

  
	
  the laws of its state of formation acting
  by EB Services Corporation as its general partner

  
	
   

  
	
   

  	
  /s/

  	
   

  	
   

  
	
   

  
	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
  /s/

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Secretary

  



 


 


Signature Page


EBI
– Game Termination Agt


 

















 




	
  Dated

  	
   

  	
  January 30, 2004

  






 


 


THE GAME GROUP PLC (1)


 


and


 


THE ELECTRONICS BOUTIQUE, INCORPORATED (2)


 


and


 


EB SERVICES COMPANY, LLP (3)


 


 


TERMINATION AGREEMENT