SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 8 OF 16 PAGES
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement") dated as of January 20, 2006, is by and
among WS MIDWAY HOLDINGS, INC., a Delaware corporation ("Holdings"), and HBK
Investments L.P., a Delaware limited partnership ("HBK"). For purposes of this
Agreement, capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Agreement and Plan of Merger, dated
as of December 8, 2005 (the "Merger Agreement"), by and among Holdings, WS
Midway Acquisition Sub, Inc., a Missouri corporation ("Merger Sub"), and Xxxx &
Buster's, Inc., a Missouri corporation (the "Company").
RECITALS
A. HBK "beneficially owns" (as such term is defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) one million three hundred fourteen thousand four hundred
(1,314,400) shares of common stock (the "Common Stock"), par value $0.01 per
share, of the Company (such shares of Common Stock, together with all other
shares of capital stock of the Company acquired by HBK or any of its Affiliates
(as such term is defined in Rule 12b-2 promulgated under the Securities Exchange
Act of 1934, as amended) after the date hereof and during the term of this
Agreement, being collectively referred to herein as the "Subject Shares").
B. Holdings, Merger Sub and the Company have entered into the Merger
Agreement providing for the merger of Merger Sub with and into the Company, with
the Company surviving the Merger (the "Merger") upon the terms and subject to
the conditions set forth therein.
C. HBK and its Affiliates wish to invest in Holdings in connection with the
consummation of the Merger, on substantially the terms set forth on Annex A
hereto (the "Co-Invest").
D. As a condition to the Co-Invest, Holdings has required that HBK enter
into this Agreement, and HBK desires to enter into this Agreement to induce
Holdings to permit the Co-Invest.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF HBK.
HBK hereby represents and warrants to Holdings as follows:
(a) AUTHORITY. HBK has all requisite limited partnership power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. This Agreement has been
duly authorized, executed and delivered by HBK and constitutes a
valid and binding obligation of HBK enforceable in accordance
with its terms subject to (i) bankruptcy, insolvency, moratorium
and other
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 9 OF 16 PAGES
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, and (ii) general principles of
equity (regardless of whether considered in a proceeding at law
or in equity).
(b) NO CONFLICTS. (i) No filing by HBK or any of its Affiliates with
any governmental body or authority, and no authorization, consent
or approval of any other Person is necessary for the execution of
this Agreement by HBK and the consummation by HBK of the
transactions contemplated hereby and (ii) none of the execution
and delivery of this Agreement by HBK, the consummation by HBK of
the transactions contemplated hereby or compliance by HBK with
any of the provisions hereof shall (A) result in, or give rise
to, a violation or breach of or a default under (with or without
notice or lapse of time, or both) any of the terms of any
contract, trust agreement, loan or credit agreement, note, bond,
mortgage, indenture, lease, permit, understanding, agreement or
other instrument or obligation to which HBK or any of its
Affiliates is a party or by which HBK or any of its Affiliates or
any of their respective assets or any of the Subject Shares may
be bound, or (B) violate any applicable order, writ, injunction,
decree, judgment, statute, rule or regulation, except for any of
the foregoing as would not prevent HBK or any of its Affiliates
from performing their obligations under this Agreement.
(c) THE SUBJECT SHARES. As of the date hereof, HBK is the record or
beneficial owner of one million three hundred fourteen thousand
four hundred (1,314,400) Subject Shares and has the sole power to
vote (or cause to be voted) such Subject Shares. Neither HBK nor
any Affiliate of HBK owns or holds any right to acquire any
additional shares of any class of capital stock of the Company or
other securities of the Company or any interest therein or any
voting rights with respect to any securities of the Company. HBK
or its Affiliates have good and valid title to the Subject
Shares, free and clear of any and all pledges, mortgages, liens,
charges, proxies, voting agreements, encumbrances, adverse
claims, options, security interests and demands of any nature or
kind whatsoever, other than (i) those created by this Agreement,
or (ii) as would not prevent HBK or its Affiliates from
performing their respective obligations under this Agreement.
(d) RELIANCE BY HOLDINGS. HBK understands and acknowledges that
Holdings is permitting the Co-Invest in reliance upon HBK's
execution and delivery of this Agreement.
(e) LITIGATION. As of the date hereof, there is no action, proceeding
or investigation pending or threatened against HBK or any of its
Affiliates that questions the validity of this Agreement or any
action taken or to be taken by HBK in connection with this
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF HOLDINGS.
Holdings hereby represents and warrants to HBK as follows:
(a) DUE ORGANIZATION, ETC. Holdings is duly organized, validly
existing and in good standing under the laws of the State of
Delaware. Holdings has all requisite corporate power and
authority to execute and deliver this Agreement and to
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 10 OF 16 PAGES
consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by Holdings and
constitutes a valid and binding obligation of Holdings
enforceable in accordance with its terms subject to (i)
bankruptcy, insolvency, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, and (ii) general principles of equity (regardless of
whether considered in a proceeding at law or in equity).
(b) CONFLICTS. (i) No filing by Holdings with any governmental body
or authority, and no authorization, consent or approval of any
other Person is necessary for the execution of this Agreement by
Holdings and the consummation by Holdings of the transactions
contemplated hereby and (ii) none of the execution and delivery
of this Agreement by Holdings, the consummation by Holdings of
the transactions contemplated hereby or compliance by Holdings
with any of the provisions hereof shall (A) conflict with or
result in any breach of the certificate of incorporation or
by-laws of Holdings, (B) result in, or give rise to, a violation
or breach of or a default under (with or without notice or lapse
of time, or both) any of the terms of any contract, loan or
credit agreement, note, bond, mortgage, indenture, lease, permit,
understanding, agreement or other instrument or obligation to
which Holdings is a party or by which Holdings or any of its
assets may be bound, or (C) violate any applicable order, writ,
injunction, decree, judgment, statute, rule or regulation, except
for any of the foregoing as would not prevent Holdings from
performing its obligations under this Agreement.
3. COVENANTS OF HBK.
Until the termination of this Agreement in accordance with Section 4, HBK
agrees as follows:
(a) At the Company Shareholders Meeting or at any adjournment,
postponement or continuation thereof or in any other
circumstances occurring prior to the Company Shareholders Meeting
upon which a vote or other approval with respect to the Merger
and the Merger Agreement is sought, HBK shall vote (or cause to
be voted) the Subject Shares (and each class thereof) held by HBK
or its Affiliates (i) in favor of the approval of the Merger and
the approval and adoption of the Merger Agreement; and (ii)
except with the written consent of Holdings, against any
Acquisition Proposal. Any such vote shall be cast in accordance
with such procedures relating thereto so as to ensure that it is
duly counted for purposes of determining that a quorum is present
and for purposes of recording the results of such vote. HBK
agrees not to enter into any agreement or commitment with any
Person the effect of which would be inconsistent with or
violative of the provisions and agreements contained in this
Section 3(a).
(b) HBK agrees not to, directly or indirectly, and shall cause its
Affiliates not to, (i) sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (collectively, a "Transfer") or
enter into any agreement, option or other arrangement with
respect to, or consent to a Transfer of, or convert or agree to
convert, any or all of the Subject Shares to any Person, other
than in accordance with the Merger Agreement, or (ii) grant any
proxies (other than the Company proxy card in connection with the
Company Shareholders Meeting if and to the extent such proxy is
consistent with the
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 11 OF 16 PAGES
HBK's obligations under Section 3(a) hereof), deposit any Subject
Shares into any voting trust or enter into any voting
arrangement, whether by proxy, voting agreement or otherwise,
with respect to any of the Subject Shares, other than pursuant to
this Agreement. HBK further agrees not to, and shall cause its
Affiliates not to, commit or agree to take any of the foregoing
actions or take any action that may reasonably be expected to
have the effect of preventing, impeding, interfering with or
adversely affecting its ability to perform its obligations under
this Agreement.
(c) HBK shall not, nor shall HBK permit any of its Affiliates to, nor
shall HBK act in concert with or permit any Affiliate to act in
concert with any Person to make, or in any manner participate in,
directly or indirectly, a "solicitation" (as such term is used in
the rules of the Securities and Exchange Commission) of proxies
or powers of attorney or similar rights to vote, or seek to
advise or influence any Person with respect to the voting of, any
shares of Common Stock intended to facilitate any Acquisition
Proposal or to cause shareholders of the Company not to vote to
approve and adopt the Merger Agreement. HBK shall not, and shall
cause its Affiliates not to, and shall direct any investment
banker, attorney, agent or other adviser or representative of HBK
not to, directly or indirectly, through any officer, director,
agent or otherwise, enter into, solicit, initiate, conduct or
continue any discussions or negotiations with, or knowingly
encourage or respond to any inquiries or proposals by, or provide
any information to, any Person, other than Holdings, relating to
any Acquisition Proposal. HBK hereby represents that, as of the
date hereof, it is not engaged in discussions or negotiations
with any party with respect to any Acquisition Proposal.
(d) HBK hereby agrees that it shall not, and that it shall cause each
of its Affiliates not to, without the prior approval of Holdings,
directly or indirectly, (i) acquire, offer or propose to acquire
or agree to acquire (whether by purchase, tender or exchange
offer, through an acquisition of control of another Person
(including by way of merger or consolidation), by joining a
partnership, syndicate or other group, or otherwise), the
beneficial ownership of any shares of Common Stock of the Company
or any equity securities of its Subsidiaries (or any warrants,
options or other rights to purchase or acquire, or any securities
convertible into, or exchangeable for, any Common Stock of the
Company or any equity securities of its Subsidiaries); provided,
however, that the foregoing restrictions shall not apply to any
acquisition or proposed acquisition (each, an "Acquisition") of
beneficial ownership of any additional shares of Common Stock of
the Company which is by way of stock dividends, stock
reclassifications or other distributions or offerings made
available and, if applicable, exercised on a pro rata basis, to
holders of Common Stock of the Company generally; (ii) make any
public announcement with respect to, or submit any proposal for,
any merger, consolidation, sale of substantial assets or other
business combination, tender offer or exchange offer, purchase of
assets, dissolution, liquidation, restructuring, recapitalization
or extraordinary transaction involving the Company or any of its
Subsidiaries; (iii) form, join or in any way participate in any
group (other than with respect to its Affiliates) with respect to
any of the Common Stock of the Company; (iv) otherwise act,
either alone or in concert with others, to seek control of the
Company, the Board of Directors, the management or policies of
the Company or any of its Subsidiaries; (v) deposit any of the
Subject Shares in any voting trust or subject any
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 12 OF 16 PAGES
such Subject Shares to any agreement or other arrangement with
respect to the voting of any such Subject Shares, (vi) execute
any written consent as a stockholder with respect to the Subject
Shares, (vii) seek, alone or in concert with others (A) to call a
meeting of the stockholders of the Company, (B) representation on
the Board of Directors, or (C) the removal of any member of the
Board of Directors; (viii) take or cause others to take any
action inconsistent with the foregoing, (ix) disclose any
intention, proposal, plan or arrangement with respect to any of
the foregoing; or (x) make any demand, request or proposal to
amend, waive or terminate any provision of this Section 3(e).
4. TERMINATION.
This Agreement shall terminate upon the earliest of (A) the approval and
adoption of the Merger Agreement, (B) the termination of the Merger Agreement
pursuant to Sections 7.1(a) or 7.1(b), (C) the termination of the Merger
Agreement pursuant to Sections 7.1(d), 7.1(e), or 7.1(f)(i) provided that at no
time after the date of the Merger Agreement and at or before the date of such
termination shall a proposal with respect to an Acquisition Proposal have been
publicly announced or disclosed (whether or not conditional) or disclosed to the
Board of Directors of the Company or any committee thereof, (D) six months after
the termination of the Merger Agreement pursuant to (i) Sections 7.1(d), 7.1(e)
or 7.1(f)(i) if after the date of the Merger Agreement and at or before the date
of such termination a proposal with respect to an Acquisition Proposal shall
have been publicly announced or disclosed (whether or not conditional) or
disclosed to the Board of Directors of the Company or any committee thereof or
(ii) Sections 7.1(c), 7.1(f)(ii), 7.1(g) or 7.1(h), and (E) the election of HBK,
upon any amendment of the Merger Agreement that materially adversely affects
HBK, without the prior written consent of HBK; PROVIDED, HOWEVER, that
notwithstanding the foregoing, in the event of the termination of the Merger
Agreement for any reason whatsoever, HBK shall, immediately following such
termination, be permitted to Transfer any or all of the Subject Shares to any
Person, other than a Person of which HBK is aware, that has made an Acquisition
Proposal.
5. APPRAISAL RIGHTS.
To the extent permitted by applicable law, HBK hereby waives any rights of
appraisal or rights to dissent from the Merger that it may have under applicable
law.
6. PUBLICATION.
HBK hereby authorizes Holdings and the Company to publish and disclose in
the Proxy Statement/Prospectus (including any and all documents and schedules
filed with the Securities and Exchange Commission relating thereto) its identity
and ownership of Subject Shares and the nature of its commitments, arrangements
and understandings pursuant to this Agreement; provided, that HBK shall have the
opportunity to review such disclosure and provide comments thereon prior to the
making of such publication and disclosure.
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 13 OF 16 PAGES
7. GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Missouri applicable to contracts executed in and to be
performed entirely within that State.
8. WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 9.
9. SPECIFIC PERFORMANCE.
The parties agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of Missouri or
in Missouri state court, this being in addition to any other remedy to which
they are entitled at law or in equity.
10. AMENDMENT, WAIVERS, ETC.
This Agreement may be amended by Holdings and HBK at any time before or
after adoption of the Merger Agreement by the shareholders of the Company;
provided, however, that after such adoption, no amendment shall be made that by
law or in accordance with the rules of any relevant stock exchange or automated
inter-dealer quotation system requires further approval by such shareholders
without such further approval. This Agreement may not be amended except by an
instrument in writing signed by Holdings and HBK. At any time prior to the
Effective Time, Holdings and HBK may, to the extent legally allowed, (i) extend
the time for the performance of any of the obligations or acts of the other
party; (ii) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document delivered pursuant to this
Agreement; and (iii) waive compliance with any of the agreements or conditions
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 14 OF 16 PAGES
of the other party contained herein; provided, however, that no failure or delay
by Holdings or HBK in exercising any right hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right hereunder. Any
agreement on the part of Holdings or HBK to any such extension or waiver shall
be valid only if set forth in an instrument in writing signed on behalf of such
party.
11. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES.
Neither this Agreement nor any of the rights, benefits or obligations
hereunder may be assigned by any of the parties hereto (whether by operation of
law or otherwise) without the prior written consent of all of the other parties,
except that Holdings may assign its rights hereunder to a controlled Affiliate
of Wellspring. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any Person (other than Holdings,
Wellspring and HBK and their respective successors and permitted assigns) any
legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, and no Person (other than as so specified) shall be
deemed a third party beneficiary under or by reason of this Agreement.
12. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
(i) as of the date delivered or sent by facsimile if delivered personally or by
facsimile and (ii) on the third business day after deposit in the U.S. mail, if
mailed by registered or certified mail (postage prepaid, return receipt
requested), in each case to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice, except that
notices of changes of address shall be effective upon receipt):
if to Holdings, to:
c/o Wellspring Capital Management LLC
Lever House
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Managing Partner
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to HBK, to:
HBK Investments L.P.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: 000-000-0000
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 15 OF 16 PAGES
13. NON-SURVIVAL.
The representations and warranties made herein shall not survive the
termination of the Agreement.
14. SEVERABILITY.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the maximum extent possible.
15. INTEGRATION.
This Agreement (together with the Merger Agreement to the extent referenced
herein), constitutes the full and entire understanding and agreement of the
parties with respect to the subject matter hereof and thereof and supersedes any
and all prior understandings or agreements relating to the subject matter hereof
and thereof.
16. MUTUAL DRAFTING.
Each party hereto has participated in the drafting of this Agreement, which
each party acknowledges is the result of extensive negotiations between the
parties.
17. SECTION HEADINGS.
The section headings of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.
18. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and by different
parties hereto in separate counterparts, and of which when executed shall be
deemed to be an original but all which shall constitute one and due some
agreement.
[SIGNATURE PAGE FOLLOWS]
SCHEDULE 13D
CUSIP NO. 00000X000 PAGE 16 OF 16 PAGES
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
WS MIDWAY HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Partner
HBK INVESTMENTS L.P.
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Authorized Signatory
