EXHIBIT 99.1
SUPPORT AND EXCHANGE AGREEMENT
THIS SUPPORT AND EXCHANGE AGREEMENT, dated as of May 30, 2002 (this
"Agreement"), is by and among D&B Holdings I, Inc., a Delaware corporation
("Parent"), D&B Acquisition Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent ("Purchaser"), and each of the parties listed on Exhibit A
hereto (each in his, her or its individual capacity, a "Stockholder," and,
collectively, the "Stockholders").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Parent, Purchaser and Xxxx & Buster's, Inc., a Missouri corporation
(the "Company"), are entering into an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"), which provides for, upon the terms and
subject to the conditions set forth therein, (i) the commencement by Purchaser
of a cash tender offer (the "Offer") to purchase all of Company's outstanding
shares of common stock, par value $.01 per share (the "Shares"), at a price of
$12.00 per share, and (ii) the subsequent merger of Purchaser with and into the
Company (the "Merger");
WHEREAS, as of the date hereof, each Stockholder owns, beneficially and
of record, (i) the number of Shares set forth beside such Stockholder's name on
Exhibit A (all such Shares together with any additional Shares which may
hereafter be acquired by such Stockholder prior to the termination of this
Agreement, whether upon the exercise of options or by means of purchase,
dividend, distribution or otherwise, being referred to herein as the "Owned
Shares") and (ii) stock options to purchase the number of option Shares set
forth beside such Stockholder's name on such Exhibit A (the "Rollover Options");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have required that the Stockholders enter into
this Agreement; and
WHEREAS, in order to induce Parent and Purchaser to enter into the
Merger Agreement, each Stockholder is willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Purchaser and each Stockholder hereby agree as follows:
ARTICLE I
VOTING OF SHARES;
OTHER COVENANTS OF THE STOCKHOLDER
SECTION 1.1. Voting of Shares. From the date hereof until termination
of this Agreement pursuant to Section 6.2 hereof (the "Term"), at any meeting of
the stockholders of the Company, however called, the Stockholder shall vote the
Owned Shares (i) in favor of the Merger and the Merger Agreement (as amended
from time to time), (ii) against any Acquisition
Proposal and against any proposal for action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which is reasonably
likely to result in any of the conditions of the Company's obligations under the
Merger Agreement, not being fulfilled, or any other action which could
reasonably be expected to impede, interfere with, delay, postpone or materially
adversely affect the transactions contemplated by the Merger Agreement or the
likelihood of such transactions being consummated and (iii) in favor of any
other matter necessary for consummation of the transactions contemplated by the
Merger Agreement. The foregoing obligations shall also apply to any action to be
taken by written consent of Company stockholders without a meeting.
SECTION 1.2. No Inconsistent Arrangements. Except as contemplated by
this Agreement and the Merger Agreement, the Stockholders shall not during the
Term (i) transfer (which term shall include, without limitation, any sale,
assignment, gift, pledge, hypothecation or other disposition), or consent to any
transfer of, any or all of the Owned Shares or any interest therein, or create
or permit to exist any Encumbrance (as defined in Section 4.3 hereof) on such
Owned Shares, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Owned Shares or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to the Owned Shares, (iv) deposit the Owned
Shares into a voting trust or enter into a voting agreement or arrangement with
respect to the Owned Shares, or (v) take any other action that would in any way
restrict, limit or interfere with the performance of its obligations hereunder
or the transactions contemplated hereby or by the Merger Agreement.
SECTION 1.3. Waiver of Appraisal Rights. Each Stockholder hereby waives
any rights of appraisal or rights to dissent from the Merger.
SECTION 1.4. Stop Transfer. The Stockholders shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement.
SECTION 1.5. No Solicitation. During the Term, the Stockholders shall
not, nor shall any Stockholder permit or authorize any of its partners,
employees, agents or representatives (collectively, the "Representatives") to,
take any action which a Company Representative would be prohibited from taking
by the terms of Section 5.2 of the Merger Agreement. Each Stockholder will
promptly notify Parent of the existence of any proposal, discussion, negotiation
or inquiry received by such Stockholder and will immediately communicate to
Parent the terms of any proposal, discussion, negotiation or inquiry which it
may receive (and will promptly provide to Parent copies of any written materials
received by it in connection with such proposal, discussion, negotiation or
inquiry) and the identity of the Person making such proposal or inquiry or
engaging in such discussion or negotiation. Any action taken by the Company's
directors or officers, acting solely in their corporate capacities, consistent
with Section 5.2 of the Merger Agreement shall not be considered to violate this
Section 1.5.
SECTION 1.6. No Tender. The Stockholders will not tender any of their
Owned Shares in the Offer.
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ARTICLE II
EXCHANGE OF SHARES
SECTION 2.1. Exchange. The equity capitalization of Parent (including
shares reserved for issuance under Parent stock incentive plans) as of
immediately following the Exchange (as defined below) shall be as set forth on
Exhibit B hereto (the "Parent Equity Schedule"). Each Stockholder shall,
effective as of the third business day following expiration of the Offer, (i)
exchange such Stockholder's Owned Shares for newly-issued shares of capital
stock of Parent and (ii) exchange such Stockholder's Rollover Options for new
stock options, in each case consistent with the Parent Equity Schedule (the
"Exchange"); provided that the cash equity contributions of the "Investcorp
Holders" as reflected in such Exhibit B shall be made prior to or concurrently
with such Exchange and Purchaser shall have accepted for payment Shares tendered
pursuant to the Offer. At the time of the Exchange, the certificate of
incorporation of Parent will be substantially in the form of Exhibit C hereto.
SECTION 2.2. Certain Warranties. The transfer by the Stockholders of
the Owned Shares to Parent pursuant to this Agreement shall pass to and
unconditionally vest in Parent good and valid title to the Owned Shares, free
and clear of all Encumbrances whatsoever.
SECTION 2.3. Disclosure. Each Stockholder hereby authorizes Parent and
Purchaser to publish and disclose in the Offer Documents and, if approval of the
Company's stockholders is required under applicable law, the Proxy Statement
(including all documents and schedules filed with the SEC), such Stockholder's
identity and ownership of the Owned Shares and the nature of its commitments,
arrangements and understandings under this Agreement. Each Stockholder will join
as a filing party in the Schedule 13E-3 filings made in connection with the
Offer and the Merger.
ARTICLE III
SHAREHOLDER AGREEMENT
SECTION 3.1. Stockholder Agreement. The obligations of the parties to
effect the Exchange shall be conditioned on the execution, delivery and
effectiveness of the Stockholder Agreement attached hereto as Exhibit D by
parties named therein, including the Stockholders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Parent and Purchaser
as follows:
SECTION 4.1. Due Authorization, etc. Such Stockholder has all requisite
power and authority to execute, deliver and perform this Agreement, to appoint
Purchaser and Parent as its Proxy and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of such Stockholder. This
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Agreement has been duly executed and delivered by or on behalf of such
Stockholder and constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms.
SECTION 4.2. No Conflicts; Required Filings and Consents.
(a) Except as would not impair or delay the ability of such Stockholder
to consummate the transactions contemplated hereby, the execution and delivery
of this Agreement by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not, (i) subject to the filings referred to
in Section 4.2(b), conflict with or violate any law applicable to such
Stockholder or by which such Stockholder or any of such Stockholder's assets is
bound or affected or (ii) result in any breach of or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, acceleration or cancellation of, or
result in the creation of an Encumbrance on any assets of such Stockholder,
including, without limitation, Owned Shares, pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which such Stockholder is a party or by which
such Stockholder or any of such Stockholder's assets is bound or affected.
(b) Except as would not impair or delay the ability of such Stockholder
to consummate the transactions contemplated hereby, the execution and delivery
of this Agreement by such Stockholder does not, and the performance of this
Agreement by such Stockholder will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority (other than any necessary filing under the HSR Act or
the Exchange Act).
SECTION 4.3. Title to Shares. Except as disclosed to Holdings in
writing by such Stockholder, such Stockholder is the sole record and beneficial
owner of the Owned Shares, free and clear of any pledge, lien, security
interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind ("Encumbrances"), except for Encumbrances or proxies arising pursuant
to this Agreement. As of the date hereof, the Shares listed on Exhibit A beside
such Stockholding name under the caption "Number of Shares" are the only Shares
owned of record or beneficially by such Stockholder.
SECTION 4.4. No Finder's Fees. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder (except as may be reflected in Section 3.18 of the Merger
Agreement). Such Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated hereby or by the Merger Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
PARENT AND PURCHASER
Parent and Purchaser hereby, jointly and severally, represent and
warrant to the Stockholder as follows:
SECTION 5.1. Due Organization, Authorization, etc. Purchaser and Parent
are duly organized, validly existing and in good standing under the laws of
their jurisdiction of incorporation. Purchaser and Parent have all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby by
each of Purchaser and Parent have been duly authorized by all necessary
corporate action on the part of Purchaser and Parent, respectively. This
Agreement has been duly executed and delivered by each of Purchaser and Parent
and constitutes a legal, valid and binding obligation of each of Purchaser and
Parent, enforceable against Purchaser and Parent in accordance with its terms.
SECTION 5.2. Investment Intent. Parent will be acquiring the Owned
Shares pursuant to the Exchange for its own account and not with a view to
distribution or resale in any manner which would be in violation of the
Securities Act.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Definitions. Terms used but not otherwise defined in this
Agreement have the meanings ascribed to such terms in the Merger Agreement.
SECTION 6.2. Termination. This Agreement shall terminate and be of no
further force and effect (i) upon the written mutual consent of the parties
hereto or (ii) automatically and without any required action of the parties
hereto upon the termination of the Merger Agreement prior to the Effective Time
in accordance with its terms. No such termination of this Agreement shall
relieve any party hereto from any liability for any breach of this Agreement
prior to termination.
SECTION 6.3. Further Assurance. From time to time, at another party's
request and without additional consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
SECTION 6.4. Certain Events. Each Stockholder agrees that this
Agreement and the Stockholder's obligations hereunder shall attach to the Owned
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of the Owned Shares shall pass, whether by operation of law
or otherwise. Notwithstanding any transfer of the Owned Shares, the transferor
shall remain liable for the performance of all its obligations under this
Agreement.
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SECTION 6.5. Specific Performance. Each Stockholder acknowledges that
if such Stockholder fails to perform any of its obligations under this Agreement
immediate and irreparable harm or injury would be caused to Parent and Purchaser
for which money damages would not be an adequate remedy. In such event, each
Stockholder agrees that each of Parent and Purchaser shall have the right, in
addition to any other rights it may have, to specific performance of this
Agreement. Accordingly, if Parent or Purchaser should institute an action or
proceeding seeking specific enforcement of the provisions hereof, each
Stockholder hereby waives the claim or defense that Parent or Purchaser, as the
case may be, has an adequate remedy at law and hereby agrees not to assert in
any such action or proceeding the claim or defense that such a remedy at law
exists. Each Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any such equitable
relief.
SECTION 6.6. Notice. All notices, requests, claims demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
(a) If to Parent or Purchaser: D&B Holdings I, Inc.
D&B Acquisition Sub, Inc.
c/o Gibson, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: 212-351-4065
Attention: E. Xxxxxxx Xxxxxxx, Esq.
(b) If to a Stockholder: To the appropriate address shown
on Exhibit A.
with a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx, P.C.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier: 000-000-0000
SECTION 6.7. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 6.8. 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.
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SECTION 6.9. Entire Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement, and supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement, and this Agreement is not
intended to confer upon any person, other than the parties hereto, any rights or
remedies.
SECTION 6.10. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties;
provided, however, that Parent or Purchaser may assign, in its sole discretion,
its rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of Parent, but no such assignment shall relieve Parent or Purchaser
of its obligations hereunder if such assignee does not perform such obligations.
SECTION 6.11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof. Each of the parties hereto (a) hereby irrevocably and
unconditionally consents to submit to the personal jurisdiction of the courts of
the State of New York and of the United States of America located in the State
of New York in the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) shall not object to or attempt
to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court, and (c) shall not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any other
court.
SECTION 6.12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 6.13. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 6.14. Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties of the other
parties hereto contained herein or in any document delivered pursuant hereto and
(c) waive compliance by the other parties hereto with any of their agreements or
conditions contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only as against such party and only if
set forth in an instrument in writing signed by such party. The failure of any
party hereto to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
SECTION 6.15. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
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IN WITNESS WHEREOF, Parent, Purchaser and the Stockholder have
caused this Agreement to be executed as of the date first written above.
D&B HOLDINGS, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
D&B ACQUISITION SUB, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
/s/ Xxxxx X. Cooriveau
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Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
/s/ X. X. Xxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
FIFTEEN, L.P.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: General Partner
WENTWORTH INVESTMENTS, L.P.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
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