Exhibit 3.23
Certificate of Incorporation of Electronics Boutique Holdings Corp.
CERTIFICATE OF INCORPORATION
OF
ELECTRONICS BOUTIQUE HOLDINGS CORP.
FIRST: The name of the Corporation is Electronics Boutique Holdings Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 103 Springer Building, 3411 Silverside Road, Wilmington,
Delaware 19810, located in the County of New Castle, Delaware. The name of its
registered agent at that address is Organization Services, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of Delaware as set forth in Title 8 of the Delaware Code (the "GCL").
FOURTH: A. The total number of shares of capital stock which the
Corporation shall have authority to issue is 125,000,000 shares (the "Capital
Stock"), consisting of 100,000,000 shares of common stock, par value $.01 per
share (the "Common Stock"), and 25,000,000 shares of preferred stock, par value
$.01 per share (the "Preferred Stock").
B. Shares of Preferred Stock may be issued from time to time in one or more
series, as provided for herein or as provided for by the Board of Directors as
permitted hereby. All shares of Preferred Stock shall be of equal rank and shall
be identical, except as fixed by the Board of Directors for any series provided
for by the Board of Directors as permitted hereby. All shares of any one series
shall be identical in all respects with all the other shares of such series,
except the shares of any one series issued at different times may differ as to
the dates from which dividends thereon may be cumulative.
The Board of Directors is hereby authorized, by resolution or resolutions,
to establish, out of the unissued (including previously issued and subsequently
retired) shares of Preferred Stock not then allocated to any series of Preferred
Stock, additional series of Preferred Stock. Before any shares of any such
additional series are issued, the Board of Directors shall fix and determine,
and is hereby expressly empowered to fix and determine, by resolution or
resolutions, the number of shares constituting such series and the
distinguishing characteristics and the relative rights, preferences, privileges
and immunities, if any, and any qualifications, limitations or restrictions
thereof, so far as not inconsistent with the provisions of this Article FOURTH.
Without limiting the generality of the foregoing, the Board of Directors may
fix and determine:
1. The designation of such series and the number of shares which shall
constitute such series of such shares;
2. The rate of dividend, if any, payable on shares of such series;
3. Whether the shares of such series shall be cumulative,
non-cumulative or partially cumulative as to dividends, and the dates from
which any cumulative dividends are to accumulate;
4. Whether the shares of such series may be redeemed, and, if so, the
price or prices at which and the terms and conditions on which shares of
such series may be redeemed;
5. The amount payable upon shares of such series in the event of the
voluntary or involuntary dissolution, liquidation or winding up of the
affairs of the Corporation;
6. The sinking fund provisions, if any, for the redemption of shares
of such series;
7. The voting rights, if any, of the shares of such series;
8. The terms and conditions, if any, on which shares of such series
may be converted into shares of capital stock of the Corporation of any
other class or series;
9. Whether the shares of such series are to be preferred over shares
of capital stock of the Corporation of any other class or series as to
dividends, or upon the voluntary or involuntary dissolution, liquidation,
or winding up of the affairs of the Corporation, or otherwise; and
10. Any other characteristics, preferences, limitations, rights,
privileges, immunities or terms not inconsistent with the provisions of
this Article FOURTH.
C. Except as otherwise provided in this Certificate of Incorporation, each
holder of Common Stock shall be entitled to one vote for each share of Common
Stock held by him on all matters submitted to stockholders for a vote and each
holder of Preferred Stock of any series that is Voting Stock (as hereinafter
defined) shall be entitled to such number of votes for each share held by him as
may be specified in the Certificate of Designation in respect thereof.
FIFTH: The name and mailing address of the sole incorporator is as follows:
Brian I, Sopinsky, Esquire
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
1401 Walnut Street
Philadelphia, PA 19102-3163
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SIXTH: The Corporation is to have perpetual existence.
SEVENTH: A. The Board of Directors shall have the power to make, adopt,
alter, amend, change or repeal the Bylaws of the Corporation (the "Bylaws") by
resolution adopted by the affirmative vote of a majority of the entire Board of
Directors, subject to any law or Bylaw provision requiring the affirmative vote
of a larger percentage of the members of the Board of Directors.
B. Stockholders may not make, adopt, alter, amend, change or repeal
the Bylaws of the Corporation or Articles Seventh, Eighth, Ninth, Tenth or
Eleventh of this Certificate of Incorporation except upon the affirmative vote
of at least 66.67% of the votes entitled to be cast by the holders of all
outstanding shares then entitled to vote generally in the election of directors,
voting together as a single class.
EIGHTH: The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, which shall consist of not less
than three nor more than twenty directors, the exact number of directors to be
determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors, subject to any bylaw requiring the
affirmative vote of a larger percentage of the members of the Board of
Directors. The Board of Directors shall be divided as nearly equal as possible
in number into three classes, designated Class I, Class II and Class III. Class
I directors shall be initially elected for a term expiring at the first annual
meeting of stockholders of the Corporation following the date hereof, Class II
directors shall be initially elected for a term expiring at the second annual
meeting of stockholders of the Corporation following the date hereof, and Class
III directors shall be initially elected for a term expiring at the third annual
meeting of stockholders of the Corporation following the date hereof, At each
annual meeting of stockholders, beginning in 1999, successors to the class of
directors whose term expires at that annual meeting shall be elected for a three
year term. If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting for
the year in which his term expires and until his successor shall be elected and
shall qualify, subject, however, to such director's prior death, resignation,
retirement, disqualification or removal from office. Subject to Article III,
Section 2 of the Bylaws, any vacancy on the Board of Directors that results from
an increase in the number of directors and any other vacancy may only be filled
by a majority of the directors then in office, even if less than a quorum, or by
a sole remaining director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining term
as that of his predecessor.
NINTH: Special meetings of the stockholders of the Corporation, for any
purpose or purposes, may only be called at any time by a majority of the entire
Board of Directors or by either the Chairman, the Chief Executive Officer or the
President of the Corporation.
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TENTH: No stockholder action may be taken except at an annual or special
meeting of stockholders of the Corporation and stockholders of the Corporation
may not take any action by written consent in lieu of a meeting.
ELEVENTH: Directors and officers, in exercising their respective powers
with a view to the interests of the Corporation, may consider:
(a) The interests of the Corporation's employees, suppliers, creditors
and customers;
(b) The economy of the state and nation;
(c) The interests of the community and of society; and
(d) The long-term as well as short-term interests of the Corporation
and its stockholders, including the possibility that these interests may be best
served by the continued independence of the Corporation.
This Article ELEVENTH does not create or authorize any causes of action
against the corporation or its directors or officers.
TWELFTH: A. Subject to Section C of this Article TWELFTH, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation) by reason of the fact that he
is or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, had reasonable cause to believe his conduct was
unlawful.
B. Subject to Section C of this Article TWELFTH, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director or officer of another corporation,
partnership,
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joint venture, trust or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
C. Any indemnification under this Article TWELFTH (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the director or officer is proper
in the circumstances because he has met the applicable standard of conduct set
forth in Section A or Section B of this Article TWELFTH, as the case may be.
Such determination shall be made (i) by a majority vote of directors who were
not parties to such action, suit or proceeding, even though less than a quorum,
or (ii) by a committee of such disinterested directors designated by a majority
of such disinterested directors, even though less than a quorum, or (iii) if
there are no such disinterested directors or if such disinterested directors so
direct, by independent legal counsel in a written opinion, or (iv) by the
stockholders. To the extent, however, that a director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described in Section A or Section B of this Article
TWELFTH, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith, without the necessity of authorization
in the specific case.
D. For purposes of any determination under Section C of this Article
TWELFTH, a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, to have had
no reasonable cause to believe his conduct was unlawful, if his action is based
on the records or books of account of the Corporation or another enterprise, or
on information supplied to him by the officers of the Corporation or another
enterprise in the course of their duties, or on the advice of legal counsel for
the Corporation or another enterprise or on information or records given or
reports made to the Corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise. The term "another
enterprise" as used in this Section D of Article TWELFTH shall mean any other
corporation or any partnership, joint venture, trust or other enterprise of
which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this Section D shall not
be deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth in
Sections A or B of this Article TWELFTH as the case may be.
E. Notwithstanding any contrary determination in the specific case
under Section C of this Article TWELFTH, and notwithstanding the absence of any
determination thereunder, any
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director or officer may apply to any court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise permissible under
Sections A and B of this Article TWELFTH. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standards of conduct set forth in Sections A or B of this Article
TWELFTH, as the case may be. Notice of any application for indemnification
pursuant to this Section E of Article TWELFTH shall be given to the Corporation
promptly upon the filing of such application.
F. Expenses incurred by a director or officer of the Corporation in
defending or investigating a threatened or pending action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article TWELFTH.
G. The indemnification and advancement of expenses provided by this
Article TWELFTH shall not be deemed exclusive of any other rights to which any
person seeking indemnification or advancement of expenses may be entitled under
any Bylaw, agreement, contract, vote of stockholders or disinterested directors
or pursuant to the direction (howsoever embodied) of any court of competent
Jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of, and advancement of expenses to, the persons
specified in Sections A and B of this Article TWELFTH shall be made to the
fullest extent permitted by law, The provisions of this Article TWELFTH shall
not be deemed to preclude the indemnification of, and advancement of expenses
to, any person who is not specified in Sections A or B of this Article TWELFTH
but whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or
otherwise. The indemnification provided by this Article TWELFTH shall continue
as to a person who has ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such person.
H. The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director or officer of the Corporation, or, while a
director or officer of the Corporation, is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or the obligation to
indemnify him against such liability under the provisions of this Article
TWELFTH.
I. For purposes of this Article TWELFTH, reference to "the
Corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors or officers, so that any
person who is or was a director or officer of such constituent corporation, or
is or was serving at the request of such constituent corporation as a director
or officer of another corporation, partnership.
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limited liability company, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article TWELFTH with respect
to the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
THIRTEENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of the GCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of the GCL, order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of stockholders, of this Corporation, as the case
may be, and also on this Corporation.
FOURTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
FIFTEENTH: No director of this Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law, (iii) under Section 174 of the GCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the
GCL is hereafter amended to authorize corporate action further limiting or
eliminating the personal liability of directors, then the liability of each
director of the Corporation shall be limited or eliminated to the fullest extent
permitted by the GCL as so amended from time to time.
I, THE UNDERSIGNED, being the sole incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of the
State of Delaware, do make this certificate, hereby declaring and certifying
that this is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 13th day of March, 1998.
/s/ Brian I. Sopinsky
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Brian I. Sopinsky, Sole Incorporator
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