UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
Current Report
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| Item 8.01 | Other Events. |
On September 10, 2024, GameStop Corp., a Delaware corporation (the “Company”), filed a prospectus supplement (the “Prospectus Supplement”) with the Securities and Exchange Commission (the “SEC”) in connection with the Company’s “at-the-market offering” program (the “Offering”) for the offer and sale from time to time through Jefferies LLC (the “Sales Agent”) of up to 20,000,000 shares of the Company’s Class A common stock, par value $0.001 per share (the “Common Shares”), pursuant to the Company’s existing Open Market Sale AgreementSM (the “Sales Agreement”) with the Sales Agent, dated May 17, 2024. Prior to the date hereof, the Company has sold an aggregate of 120,000,000 shares of its common stock for aggregate gross proceeds of approximately $3.1 billion pursuant to the Sales Agreement.
The Common Shares are being offered and sold pursuant to the Company’s automatic shelf registration statement on Form S-3 filed with the SEC on May 17, 2024, which became effective immediately upon filing, and the Prospectus Supplement.
From time to time during the term of the Sales Agreement, the Company may deliver a placement notice to the Sales Agent specifying the length of the selling period, the amount of Common Shares to be sold, any limitation on the number of shares that may be sold in any one trading day and the minimum price below which sales may not be made. Upon its acceptance of the placement notice from the Company, the Sales Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices to solicit offers to purchase Common Shares, under the terms and subject to the conditions set forth in the Sales Agreement, by means of ordinary brokers’ transactions on the New York Stock Exchange (the “NYSE”), in negotiated transactions or in transactions that are deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended (the “Securities Act”), in block transactions, sales made directly on the Principal Market (as defined in the Sales Agreement) or sales made into any other existing trading markets of the Common Shares. The Company may instruct the Sales Agent not to sell Common Shares if the sales cannot be effected at or above the price designated by the Company in any placement notice. The Company or the Sales Agent may suspend the offering of the Common Shares at any time upon proper notice and subject to other conditions.
The Company will pay the Sales Agent a commission for its services in acting as agent in the sale of Common Shares. The Sales Agent will be entitled to compensation in an amount up to one and one-half percent (1.5%) of the gross sales price of all of the Common Shares sold through it under the Sales Agreement.
Under the terms of the Sales Agreement, the Company also may sell Common Shares to the Sales Agent, as principal for its own account, at a price to be agreed upon at the time of sale. If the Company sells Common Shares to the Sales Agent, as principal, it will enter into a separate sales agreement with the Sales Agent and the Company will describe such agreement in a separate prospectus supplement or pricing supplement.
The Offering of Common Shares pursuant to the Sales Agreement will terminate upon the earlier of (1) the sale of all Common Shares subject to the Sales Agreement or (2) termination of the Sales Agreement. The Sales Agreement may be terminated by the Sales Agent or the Company at any time upon ten days’ notice, and by the Sales Agent at any time in certain circumstances, including suspension of trading of Common Shares on the NYSE or the occurrence of a material adverse change in the Company’s business.
The Company made certain customary representations, warranties and covenants concerning the Company and the Common Shares in the Sales Agreement and agreed to indemnify the Sales Agent against certain liabilities, including liabilities under the Securities Act.
Olshan Frome Wolosky LLP, counsel to the Company, has issued a legal opinion relating to the legality of the issuance and the sale of the Common Shares. A copy of such legal opinion, including the consent included therein, is attached as Exhibit 5.1 hereto.
The Company intends to use the net proceeds from the Offering, if any, for general corporate purposes, which may include acquisitions and investments in accordance with the Company’s investment policy.
The Sales Agreement was filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K filed with the SEC on May 17, 2024 and is incorporated herein by reference. The description of the material terms of the Sales Agreement is qualified in its entirely by reference to such Exhibit.
This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit |
| |
| 1.1 | Open Market Sale AgreementSM, dated May 17, 2024, by and between GameStop Corp. and Jefferies LLC (incorporated by reference to the Company’s Current Report on Form 8-K filed May 17, 2024).* | |
| 5.1 | Opinion of Olshan Frome Wolosky LLP. | |
| 23.1 | Consent of Olshan Frome Wolosky LLP (contained in Exhibit 5.1 above). | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
| * | Certain schedules and other similar attachments to this exhibit have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K. The Company will provide a copy of such omitted documents to the Securities and Exchange Commission upon request. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GAMESTOP CORP. | ||||||
| By: | /s/ Daniel Moore | |||||
| Name: | Daniel Moore | |||||
| Title: | Principal Financial and Accounting Officer | |||||
| Date: September 10, 2024 | ||||||
Exhibit 5.1
September 10, 2024
GameStop Corp.
625 Westport Parkway
Grapevine, Texas 76051
Ladies and Gentlemen:
We are acting as counsel to GameStop Corp., a Delaware corporation (the “Company”), in connection with the issuance and sale of up to 20,000,000 shares (the “Shares”) of the Company’s Class A Common Stock, par value $0.001 per share, all of which are authorized but heretofore unissued shares to be offered and sold by the Company pursuant to the Registration Statement on Form S-3 (File No. 333-279472) (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), on May 17, 2024, which became effective automatically as of the date of filing, including the base prospectus contained therein, dated May 17, 2024 (the “Base Prospectus”), as supplemented by the prospectus supplement dated September 10, 2024, relating to the offer and sale of the Shares (as so supplemented, the “Prospectus”) pursuant to the Open Market Sale AgreementSM (the “Sales Agreement”), dated as of May 17, 2024, by and between the Company and Jefferies LLC.
In connection with this opinion letter, we have examined (i) the Registration Statement, (ii) the Prospectus, (iii) the Third Amended and Restated Certificate of Incorporation of the Company, as amended, (iv) the Fifth Amended and Restated Bylaws of the Company, as amended, (v) certain resolutions of the board of directors of the Company (the “Board”) relating to the issuance, sale and registration of the Shares and (vi) the Sales Agreement. In addition, we have examined and relied upon such corporate records of the Company, and have made such examination of law, as we have deemed necessary or appropriate for purposes of the opinions expressed below. As to certain factual matters, unless otherwise indicated, we have relied, to the extent we have deemed proper, on certificates of certain officers of the Company.
We have assumed for purposes of rendering the opinions set forth herein, without any verification by us, the genuineness of all signatures, the legal capacity of all natural persons to execute and deliver documents, the authenticity and completeness of documents submitted to us as originals, the completeness and conformity with authentic original documents of all documents submitted to us as copies, and that all documents, books and records made available to us by the Company are accurate and complete.
Based upon, subject to and limited by the foregoing, we are of the opinion that the Shares have been duly and validly authorized by the Company and, upon issuance, delivery and payment therefor in the manner contemplated by the Registration Statement and the Prospectus, will be legally issued, fully paid and nonassessable.
September 10, 2024
Page 2
We are members of the Bar of the State of New York. We do not express any opinion as to the effect of any laws other than the laws of the State of New York and the General Corporation Law of the State of Delaware, and the federal laws of the United States of America, as in effect on the date hereof.
This letter speaks only at and as of its date and is based solely on the facts and circumstances known to us at and as of such date. We assume no obligation to revise or supplement this letter to reflect any facts or circumstances that may hereafter come to our attention or any changes in fact or law that may hereafter occur.
We hereby consent to the filing of this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Act with the Commission as an exhibit to the Current Report on Form 8-K to be filed by the Company in connection with the issuance and sale of the Shares and to the use of our name in the Prospectus under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
| Very truly yours, |
| /s/ OLSHAN FROME WOLOSKY LLP |
| OLSHAN FROME WOLOSKY LLP |