Form Of Amended And Restated Certificate Of Incorp

AMENDED AND RESTATED


CERTIFICATE OF INCORPORATION


OF


GAMESTOP CORP.


GameStop Corp., a corporation organized and existing under the laws of the State of Delaware, pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware, as the same may be amended and supplemented (the "GCL"), hereby certifies as follows:


1. The name of this corporation is GameStop Corp. The original Certificate of Incorporation was filed on August 10, 2001.


2. This Amended and Restated Certificate of Incorporation restates and amends the original Certificate of Incorporation to read in its entirety as follows:


"FIRST: The name of the corporation is GameStop Corp. (the "Corporation").


SECOND: The registered office of the Corporation is to be located at 2711 Centerville Road Suite 400, City of Wilmington, County of New Castle, State of Delaware. The name of its registered agent at that address is Corporation Service Company.


THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the GCL.


FOURTH: (a) Authorized Capital Stock. The total number of shares of stock that the Corporation shall have authority to issue is 405,000,000 of which (i) 300,000,000 shares shall be shares of Class A Common Stock, par value $.00l per share (the "Class A Common Stock"), (ii) 100,000,000 shares shall be shares of Class B Common Stock, par value $.00l per share (the "Class B Common Stock") (the Class A Common Stock and the Class B Common Stock being collectively referred to herein as the "Common Stock"), and (iii) 5,000,000 shares shall be shares of Preferred Stock, par value $.001 per share (the "Preferred Stock"), issuable in one or more series as hereinafter provided. The number of authorized shares of any class or classes of capital stock of the Corporation may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of the stock of the Corporation entitled to vote generally in the election of directors ("Voting Stock") irrespective of the provisions of Section 242(b)(2) of the GCL or any corresponding provision hereinafter enacted.
(b) Common Stock.


(i) Voting Rights.


(A) All shares of Common Stock will be identical in all respects and will entitle the holders thereof to the same rights and privileges, except as otherwise provided in this Amended and Restated Certificate of Incorporation (this "Certificate of Incorporation").


(B) The holders of shares of Common Stock shall have the following voting rights:


(1) At every meeting of the stockholders of the Corporation every holder of Class A Common Stock shall be entitled to one vote in person or by proxy for each share of Class A Common Stock standing in such holder's name on the transfer books of the Corporation in connection with the election of directors and all other matters submitted to a vote of stockholders.


(2) At every meeting of the stockholders of the Corporation every holder of Class B Common Stock shall be entitled to ten votes in person or by proxy for each share of Class B Common Stock standing in his or her name on the transfer books of the Corporation in connection with the election of directors and all other matters submitted to a vote of stockholders.


(3) Except as may be otherwise required by law or by this Certificate of Incorporation, the holders of Class A Common Stock and Class B Common Stock shall vote together as a single class and their votes shall be counted and totaled together, subject to any voting rights which may be granted to holders of Preferred Stock, on all matters submitted to a vote of stockholders of the Corporation. Notwithstanding any other provision of this Certificate of Incorporation to the contrary, holders of Class A Common Stock shall not be eligible to vote on any alteration or change in the powers, preferences, or special rights of the Class B Common Stock that would not adversely affect the rights of the Class A Common Stock; provided that, for the foregoing purposes, any provision for the voluntary, mandatory or other conversion or exchange of the Class B Common Stock into or for Class A Common Stock on a one for one basis shall be deemed not to adversely affect the rights of the Class A Common Stock.


(ii) Dividends and Distributions. Subject to the rights of the holders of Preferred Stock, and subject to any other provisions of this Certificate of Incorporation, holders of Class A Common Stock and Class B Common Stock shall be entitled to receive such dividends and other distributions in cash, stock of any corporation (other than Common Stock of the Corporation) or property of the Corporation as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in all such dividends and other distributions. In the case of dividends or other distributions payable in Common Stock, including distributions


-2- pursuant to stock splits or divisions of Common Stock of the Corporation, only shares of Class A Common Stock shall be paid or distributed with respect to Class A Common Stock and only shares of Class B Common Stock shall be paid or distributed with respect to Class B Common Stock. The number of shares of Class A Common Stock and Class B Common Stock so distributed on each share shall be equal in number.


(iii) Conversion of Class B Common Stock.


(A) Prior to the date on which shares of Class B Common Stock are transferred to the holders of shares of common stock of B&N (as defined below) in a Tax-Free Spin-Off (as defined in paragraph (b)(iii)(B) below), each record holder of shares of Class B Common Stock may from time to time convert any or all of such shares into an equal number of shares of Class A Common Stock by surrendering the certificates for such shares, accompanied by any required tax transfer stamps and by a written notice by such record holder to the Corporation stating that such record holder desires to convert such shares of Class B Common Stock into the same number of shares of Class A Common Stock and requesting that the Corporation issue all of such shares of Class A Common Stock to each such Person (as defined below) named therein, setting forth the number of shares of Class A Common Stock to be issued to each such Person and the denominations in which the certificates therefor are to be issued. To the extent permitted by law, such voluntary conversion shall be deemed to have been effected at the close of business on the date of such surrender. For purposes of this Certificate of Incorporation, "Person" shall mean any individual, firm, corporation, partnership or other entity, and "B&N" shall mean Barnes & Noble, Inc., a Delaware corporation, and all successors thereto by way of merger, consolidation or sale of all or substantially all of its assets.


(B) (1) Prior to a Tax-Free Spin-Off, each share of Class B Common Stock shall automatically convert into one share of Class A Common Stock upon the transfer of such share if, after such transfer, such share is not Beneficially Owned (as defined below) by B&N or a B&N Affiliate (as defined in paragraph (b)(iii)(D) below). Shares of Class B Common Stock shall not convert into shares of Class A Common Stock (x) in any transfer effected in connection with a distribution of Class B Common Stock as a spin-off or split-off to holders of B&N Common Stock intended to be effected on a tax-free basis under the Internal Revenue Code of 1986, as amended from time to time (a "Tax-Free Spin-Off"), or (y) in any transfer after a Tax-Free Spin-Off. For purposes of this paragraph (b)(iii)(B), a Tax-Free Spin-Off shall be deemed to have occurred at the time shares are first transferred to holders of B&N Common Stock following receipt of an affidavit described in paragraph (b)(iii)(D)(3) below. For purposes of this Certificate of Incorporation, "Beneficial Owner," "Beneficially Own," "Beneficial Ownership" and words of similar import shall have the meaning ascribed to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended.


(2) Prior to a Tax-Free Spin-Off, each share of Class B Common Stock shall automatically be converted into one share of Class A Common Stock on the date on which the outstanding shares of Class B Common Stock Beneficially Owned by B&N together with all B&N Affiliates represent less than 50% of the voting power represented by the


-3- aggregate number of shares of Common Stock then outstanding entitled to vote generally in the election of directors.


The Corporation will provide notice of any automatic conversion of all outstanding shares of Class B Common Stock to holders of record of the Common Stock as soon as practicable following such conversion; provided, however, that the Corporation may satisfy such notice requirement by providing such notice prior to such conversion. Such notice shall be provided by mailing notice of such conversion first class postage prepaid, to each holder of record of the Common Stock, at such holder's address as it appears on the transfer books of the Corporation; provided, however, that no failure to give such notice nor any defect therein shall affect the validity of the automatic conversion of any shares of Class B Common Stock. Each such notice shall state, as appropriate, the following: (x) the automatic conversion date; (y) that all outstanding shares of Class B Common Stock are automatically converted; and (z) the place or places where certificates for such shares may be surrendered in exchange for certificates representing Class A Common Stock.


(3) Immediately upon the conversion of shares of Class B Common Stock into shares of Class A Common Stock, the rights of the holders of shares of Class B Common Stock as such shall cease and such holders shall be treated for all purposes as having become the record owners of the shares of Class A Common Stock into which such shares of Class B Common Stock shall have been converted; provided, however, that such Persons shall be entitled to receive when paid all dividends, if any, which shall have been declared on the Class B Common Stock as of a record date preceding the time of such conversion and which shall be unpaid as of the time of such conversion, but the provisions contained in paragraph (b)(iii)(F) below shall likewise apply to such dividends.


(C) Prior to a Tax-Free Spin-Off, holders of shares of Class B Common Stock may (1) sell or otherwise dispose of or transfer any or all of such shares held by them, respectively, only in connection with a transfer which meets the qualifications of paragraph (b)(iii)(D) below, and under no other circumstances, or (2) convert any or all of such shares into shares of Class A Common Stock as provided in paragraph (b)(iii)(A) above. Prior to a Tax-Free Spin-Off, no one other than transferees or successive transferees who receive shares of Class B Common Stock in connection with a transfer which meets the qualifications set forth in paragraph (b)(iii)(D) below, shall by virtue of the acquisition of a certificate for shares of Class B Common Stock have the status of an owner or holder of shares of Class B Common Stock or be recognized as such by the Corporation or be otherwise entitled to enjoy for such transferee's own benefit the special rights and powers of a holder of shares of Class B Common Stock.


Holders of shares of Class B Common Stock may at any and all times transfer to any Person the shares of Class A Common Stock issuable upon conversion of such shares of Class B Common Stock, subject to compliance with applicable laws.


(D) (1) Prior to a Tax-Free Spin-Off, shares of Class B Common Stock shall be transferred on the books of the Corporation and a new certificate


-4- therefor issued, upon presentation at the office of the Secretary of the Corporation (or at such additional place or places as may from time to time be designated by the Secretary of the Corporation) of the certificate for such shares, in proper form for transfer and accompanied by all requisite stock transfer tax stamps, only if such certificate when so presented shall also be accompanied by any one of the following:


(i) a certificate from B&N stating that such transfer is to a B&N Affiliate; or


(ii) a certificate from B&N stating that such transfer by a B&N Affiliate is to B&N or to any other B&N Affiliate; or


(iii) a certificate from B&N stating that such transfer is to the holders of B&N Common Stock in connection with a Tax-Free Spin-Off.


For purposes of this Certificate of Incorporation, "B&N Affiliate" means, with respect to B&N, any Person (other than the Corporation and any of its subsidiaries) that directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with B&N. For purposes of this Certificate of Incorporation, "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.


(2) Each certificate of a record holder furnished pursuant to this paragraph (b)(iii)(D) shall be verified as of a date not earlier than five days prior to the date of delivery thereof, and, where such record holder is a corporation or partnership, shall be verified by an officer of the corporation or by a general partner of the partnership, as the case may be.


(3) If a record holder of shares of Class B Common Stock shall deliver a certificate for such shares, endorsed by such holder for transfer or accompanied by an instrument of transfer signed by him or her, to a Person who receives such shares in connection with a transfer which does not meet the qualifications set forth in this paragraph (b)(iii)(D), then such Person or any successive transferee of such certificate may treat such endorsement or instrument as authorizing such Person on behalf of such record holder to convert such shares in the manner above provided for the purpose of the transfer to such Person of the shares of Class A Common Stock issuable upon such conversion, and to give on behalf of such record holder the written notice of conversion above required, and may convert such shares of Class B Common Stock accordingly.


(4) If such shares of Class B Common Stock shall improperly have been registered in the name of a Person not meeting the qualifications set forth in ...