EXHIBIT 4.5
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XXXX & BUSTER'S INC.
and
THE BANK OF NEW YORK, as Warrant Agent
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WARRANT AGENT AGREEMENT
Dated as of August 7, 2003
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WARRANT AGENT AGREEMENT
TABLE OF CONTENTS
Page
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SECTION 1. Appointment of Warrant Agent................................................................1
SECTION 2. Warrant Certificates........................................................................1
SECTION 3. Execution of Warrant Certificates...........................................................1
SECTION 4. Registration................................................................................2
SECTION 5. Registration of Transfers and Exchanges.....................................................2
SECTION 6. Terms and Release of Warrants...............................................................3
SECTION 7. Reservation of Warrant Shares...............................................................3
SECTION 8. Notices to Warrant holders..................................................................3
SECTION 9. Merger, Consolidation or Change of Name of Warrant Agent....................................3
SECTION 10. Warrant Agent...............................................................................3
SECTION 11. Change of Warrant Agent.....................................................................6
SECTION 12. Notices to Company and Warrant Agent........................................................7
SECTION 13. Supplements and Amendments..................................................................7
SECTION 14. Successors..................................................................................7
SECTION 15. Termination.................................................................................8
SECTION 16. Governing Law...............................................................................8
SECTION 17. Benefits of This Agreement..................................................................8
SECTION 18. Counterparts................................................................................8
SECTION 19. Conflicting Terms...........................................................................8
EXHIBIT A Form of Warrant Certificate
WARRANT AGENT AGREEMENT dated as of August 7, 2003 between Xxxx &
Buster's Inc., a Missouri corporation (the "COMPANY"), and The Bank of
New York,
a
New York banking corporation, as Warrant Agent (the "WARRANT AGENT").
WHEREAS, the Company has entered into a Securities Purchase
Agreement dated August 6, 2003 (the "Securities Purchase Agreement") by and
between the Company and the buyers listed in Exhibit A to the Securities
Purchase Agreement pursuant to which the Company proposes to issue warrants to
purchase common stock of the Company, as hereinafter described (the "WARRANTS"),
which in the aggregate initially entitle the holders thereof to purchase 574,691
shares of Common Stock of the Company (the "COMMON STOCK" and with the Common
Stock issuable on exercise of the Warrants being referred to herein as the
"WARRANT SHARES"). Capitalized terms used and not otherwise defined herein have
the meanings ascribed thereto in the Warrant Certificate (as defined below).
WHEREAS, the Company desires the Warrant Agent to act on behalf
of the Company, and the Warrant Agent is willing so to act, in connection with
the transfer, exchange and exercise of Warrants and other matters as provided
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the instructions set forth hereinafter in this Agreement, and the Warrant Agent
hereby accepts such appointment. The Company may from time to time appoint such
Co-Warrant Agent(s) as it may deem necessary or desirable upon ten (10) days'
prior written notice to the Warrant Agent. The Warrant Agent shall have no duty
to supervise, and shall in no event be liable for, the acts or omissions of any
such Co-Warrant Agent(s).
SECTION 2. WARRANT CERTIFICATES. The certificates evidencing the
Warrants (the "WARRANT CERTIFICATES") to be delivered pursuant to this Agreement
shall be in registered form only and shall be substantially in the form set
forth in Exhibit A attached hereto. The Warrant Certificates are hereby made a
part of this Agreement and the terms and conditions set forth therein are hereby
incorporated herein.
SECTION 3. EXECUTION OF WARRANT CERTIFICATES. Warrant
Certificates shall be signed on behalf of the Company by its Chairman of the
Board, Chief Executive Officer, Chief Financial Officer, President or a Vice
President. Each such signature upon the Warrant Certificates may be in the form
of a facsimile signature of the present or any future Chairman of the Board,
Chief Executive Officer, Chief Financial Officer, President, or a Vice President
and may be imprinted or otherwise reproduced on the Warrant Certificates and for
that purpose the Company may adopt and use the facsimile signature of any person
who shall have been Chairman of the Board, Chief Executive Officer, Chief
Financial Officer, President, or a Vice President, notwithstanding the fact that
at the time the Warrant Certificates shall be transferred or disposed of he or
she shall have ceased to hold such office.
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In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer before the Warrant
Certificates so signed shall be transferred or disposed of by the Company, such
Warrant Certificates nevertheless may be transferred or disposed of as though
such person had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Warrant Certificate, shall be a proper
officer of the Company to sign such Warrant Certificate, although at the date of
the execution of this
Warrant Agent Agreement any such person was not such
officer.
Each Warrant Certificate shall be dated the date such Warrant
Certificate was authorized to be transferred by the Company.
SECTION 4. REGISTRATION. The Warrant Agent, on behalf of the
Company, shall hold any unregistered Warrants.
The Company and the Warrant Agent may deem and treat the
registered holder(s) of the Warrant Certificates as the absolute owner(s)
thereof (notwithstanding any notation of ownership or other writing thereon made
by anyone), for all purposes, and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary.
SECTION 5. REGISTRATION OF TRANSFERS AND EXCHANGES. The Warrant
Agent shall from time to time, subject to the limitations and on the terms and
conditions set forth in the Warrant Certificates, register the transfer of any
outstanding Warrant Certificates upon the records to be maintained by it for
that purpose, upon surrender thereof duly endorsed or accompanied (if so
required by the Company) by a written instrument or instruments of transfer in
form satisfactory to the Company, duly executed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney. Upon any such registration of transfer, a new Warrant
Certificate shall be issued to the transferee(s) and the surrendered Warrant
Certificate shall be cancelled by the Warrant Agent. Cancelled Warrant
Certificates shall thereafter be disposed of by the Warrant Agent in its
customary manner.
Subject to the terms of the Warrant Certificates, Warrant
Certificates may be exchanged at the option of the holder(s) thereof, when
surrendered to the Warrant Agent at its principal corporate trust office, which
is currently located at the address listed in Section 12 hereof, for another
Warrant Certificate or other Warrant Certificates of like tenor and representing
in the aggregate a like number of Warrants. Any holder desiring to exchange a
Warrant Certificate shall deliver a written request to the Warrant Agent, and
shall surrender, duly endorsed or accompanied (if so required by the Warrant
Agent) by a written instrument or instruments of transfer in form satisfactory
to the Warrant Agent, the Warrant Certificate or Certificates to be so
exchanged. Warrant Certificates surrendered for exchange shall be cancelled by
the Warrant Agent. Such cancelled Warrant Certificates shall then be disposed of
by such Warrant Agent in its customary manner.
The Warrant Agent is hereby authorized to transfer, in accordance
with the provisions of this Section 5, the new Warrant Certificates required
pursuant to the provisions of this Section 5.
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SECTION 6. TERMS AND EXERCISE OF WARRANTS. A Warrant may be
exercised, subject to the terms and conditions therein, upon surrender to the
Company at the principal corporate trust office of the Warrant Agent, which is
currently located at the address listed in Section 12 hereof.
The Warrant Agent may assume that any Warrant presented for
exercise is permitted to be so exercised under applicable law and shall have no
liability for acting in reliance on such assumption. All Warrant Certificates
surrendered upon exercise of Warrants shall be canceled by the Warrant Agent.
Such canceled Warrant Certificates shall then be disposed of by the Warrant
Agent in its customary manner. The Warrant Agent shall account promptly to the
Company with respect to Warrants exercised and concurrently pay to the Company
all monies received by the Warrant Agent for the purchase of the Warrant Shares
through the exercise of such Warrants.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder available for inspection by the holders with
reasonable prior written notice during normal business hours at its office.
SECTION 7. RESERVATION OF WARRANT SHARES. The Warrant Agent shall
have no duty to verify availability of any shares of Common Stock set aside
pursuant to Section 4(b) of the Warrant Certificates. The Company will keep a
copy of this Agreement on file with the Transfer Agent (used hereinafter as such
term is defined in the Warrant Certificates) and with every subsequent transfer
agent for any shares of the Company's Common Stock issuable upon the exercise of
the rights of purchase represented by the Warrants. The Warrant Agent is hereby
irrevocably authorized to requisition from time to time from such Transfer Agent
the stock certificates required to honor outstanding Warrants upon exercise
thereof in accordance with the terms of this Agreement. The Company will supply
such Transfer Agent with duly executed certificates for such purposes and will
provide or otherwise make available any cash which may be payable as provided in
Section 2 of the Warrant Certificates. The Company will furnish such Transfer
Agent a copy of all notices filed with the Warrant Agent pursuant to Section 8
hereof.
SECTION 8. NOTICES TO WARRANT AGENT. The Company shall cause to
be filed with the Warrant Agent a copy of every notice or other communication
sent to the registered holders of the Warrant Certificates pursuant to the
Warrant Certificates promptly upon delivery of any such notice or communication
to the registered holders of the Warrant Certificates.
SECTION 9. MERGER, CONSOLIDATION OR CHANGE OF NAME OF WARRANT
AGENT. Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all the corporate trust or agency business of
the Warrant Agent, shall be the successor to the Warrant Agent hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided that such corporation would be eligible for
appointment as a successor warrant agent under the provisions of Section 11 of
this Agreement.
SECTION 10. WARRANT AGENT. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement (and no implied duties or
obligations shall be read into this Agreement against the Warrant Agent) upon
the following terms and conditions, by all of which the Company and the holders
of Warrants, by their acceptance thereof, shall be bound:
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(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company and the Warrant Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Warrant Agent or action taken or to be taken by it. The Warrant
Agent assumes no responsibility with respect to the distribution of the Warrant
Certificates except as herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure of
the Company to comply with any of the covenants contained in this Agreement or
in the Warrant Certificates to be complied with by the Company.
(c) The Warrant Agent may consult at any time with counsel of its
own selection (who may be counsel for the Company) and the Warrant Agent shall
incur no liability or responsibility to the Company or to any holder of any
Warrant Certificate in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of such
counsel. The Warrant Agent may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Warrant Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(d) In the absence of bad faith on its part, the Warrant Agent
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Warrant Agent and conforming to the requirements of this Agreement. The Warrant
Agent shall incur no liability or responsibility to the Company or to any holder
of any Warrant Certificate for any action taken in reliance on any Warrant
Certificate, certificate of shares, notice, resolution, waiver, consent, order,
certificate, or other paper, document or instrument (whether in its original or
facsimile form) believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent such
compensation for all services rendered by the Warrant Agent in the
administration and execution of this Agreement as the Company and the Warrant
Agent shall agree in writing and to reimburse the Warrant Agent for all
expenses, taxes and governmental charges and other charges of any kind and
nature incurred by the Warrant Agent in the execution of this Agreement
(including fees and expenses of its counsel) and to indemnify the Warrant Agent
(and any predecessor Warrant Agent) and save it harmless against any and all
claims (whether asserted by the Company, a holder or any other person), damages,
losses, expenses (including taxes other than taxes based on the income of the
Warrant Agent), liabilities, including judgments, costs and counsel fees and
expenses, for anything done or omitted by the Warrant Agent in the execution of
this Agreement except as a result of its gross negligence or willful misconduct.
The provisions of this Section 10(e) shall survive the expiration of the
Warrants and the termination of this Agreement.
(f) The Warrant Agent shall be under no obligation to institute
any action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with security and indemnity
satisfactory to it for any costs and expenses which may be incurred, but this
provision shall not affect the power of the Warrant Agent to take such action as
it may consider proper, whether with or without any such security or indemnity.
All rights of action under this Agreement or under any of the Warrants may be
enforced by the Warrant Agent without the
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possession of any of the Warrant Certificates or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Warrant Agent shall be brought in its name as
Warrant Agent and any recovery of judgment shall be for the ratable benefit of
the registered holders of the Warrants, as their respective rights or interests
may appear.
(g) The Warrant Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Warrants or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything which it may do or refrain from
doing in connection with this Agreement except for its own gross negligence or
willful misconduct. The Warrant Agent shall not be liable for any error of
judgment made in good faith by it, unless it shall be proved that the Warrant
Agent was grossly negligent in ascertaining the pertinent facts. Notwithstanding
anything in this Agreement to the contrary, in no event shall the Warrant Agent
be liable for special, indirect, punitive or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits), even if the Warrant
Agent has been advised of the likelihood of the loss or damage and regardless of
the form of the action.
(i) The Warrant Agent shall not at any time be under any duty or
responsibility to any holder of any Warrant Certificate to make or cause to be
made any adjustment of the Exercise Price or number of the Warrant Shares or
other securities or property deliverable as provided in this Agreement, or to
determine whether any facts exist which may require any of such adjustments, or
with respect to the nature or extent of any such adjustments, when made, or with
respect to the method employed in making the same. The Warrant Agent shall not
be accountable with respect to the validity or value or the kind or amount of
any Warrant Shares or of any securities or property which may at any time be
issued or delivered upon the exercise of any Warrant or with respect to whether
any such Warrant Shares or other securities will when issued be validly issued
and fully paid and nonassessable, and makes no representation with respect
thereto.
(j) Notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Warrant Agent shall have any liability to any holder
of a Warrant Certificate or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative agency
or commission, or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation; provided that the Company must use its
reasonable best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
(k) Any application by the Warrant Agent for written instructions
from the Company may, at the option of the Warrant Agent, set forth in writing
any action proposed to be taken or
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omitted by the Warrant Agent under this Agreement and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Warrant Agent shall not be liable for any action taken by, or omission of, the
Warrant Agent in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Warrant Agent shall have received written
instructions in response to such application specifying the action to be taken
or omitted.
(l) No provision of this Agreement shall require the Warrant
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its
rights.
(m) In addition to the foregoing, the Warrant Agent shall be
protected and shall incur no liability for, or in respect of, any action taken
or omitted by it in connection with its administration of this Agreement if such
acts or omissions are in reliance upon (i) the proper execution of the
certification concerning beneficial ownership appended to the form of assignment
and the form of the election attached hereto unless the Warrant Agent shall have
actual knowledge that, as executed, such certification is untrue, or (ii) the
non-execution of such certification including, without limitation, any refusal
to honor any otherwise permissible assignment or election by reason of such
non-execution.
SECTION 11. CHANGE OF WARRANT AGENT. The Warrant Agent may at any
time resign as Warrant Agent upon written notice to the Company. If the Warrant
Agent shall become incapable of acting as Warrant Agent, the Company shall
appoint a successor to such Warrant Agent. If the Company shall fail to make
such appointment within a period of thirty (30) days after it has been notified
in writing of such resignation or of such incapacity by the Warrant Agent or by
the registered holder of a Warrant Certificate, then the registered holder of
any Warrant Certificate or the Warrant Agent may apply, at the expense of the
Company, to any court of competent jurisdiction for the appointment of a
successor to the Warrant Agent. Pending appointment of a successor to such
Warrant Agent, either by the Company or by such a court, the duties of the
Warrant Agent shall be carried out by the Company. The holders of a majority of
the unexercised Warrants shall be entitled at any time to remove the Warrant
Agent and appoint a successor to such Warrant Agent. If a Successor Warrant
Agent shall not have been appointed within thirty (30) days of such removal, the
Warrant Agent may apply, at the expense of the Company, to any court of
competent jurisdiction for the appointment of a successor to the Warrant Agent.
Such successor to the Warrant Agent need not be approved by the Company or the
former Warrant Agent. After appointment the successor to the Warrant Agent shall
be vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed; but the
former Warrant Agent upon payment of all fees and expenses due it and its agents
and counsel shall deliver and transfer to the successor to the Warrant Agent any
property at the time held by it hereunder and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Failure to give
any notice provided for in this Section 11, however, or any defect therein,
shall not affect the legality or validity of the appointment of a successor to
the Warrant Agent.
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SECTION 12. NOTICES TO COMPANY AND WARRANT AGENT. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by the registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made when and if deposited in the mail, first class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
Xxxx & Buster's Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx, Esq.,
Senior Vice President and General Counsel
In case the Company shall fail to maintain such office or agency
or shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal corporate trust office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company
or by the registered holder(s) of any Warrant Certificate to the Warrant Agent
shall be sufficiently given when and if deposited in the mail, first-class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as follows:
The Bank of
New York
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
SECTION 13. SUPPLEMENTS AND AMENDMENTS. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any holders of Warrant Certificates in order to cure any
ambiguity or to correct or supplement any provision contained herein which may
be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder which the
Company and the Warrant Agent may deem necessary or desirable and which shall
not in any way adversely affect the interests of the holders of Warrant
Certificates. Upon the delivery of a certificate from an appropriate officer of
the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 13, the Warrant Agent shall execute
such supplement or amendment. Notwithstanding anything in this Agreement to the
contrary, the prior written consent of the Warrant Agent must be obtained in
connection with any supplement or amendment which alters the rights or duties of
the Warrant Agent. The Company and the Warrant Agent may amend any provision
herein with the consent of the holders of Warrants exercisable for a majority of
the Warrant Shares issuable on exercise of all outstanding Warrants.
SECTION 14. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
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SECTION 15. TERMINATION. This Agreement will terminate on any
earlier date if all Warrants have been exercised or expired without exercise.
The provisions of Section 15 hereof shall survive such termination.
SECTION 16. GOVERNING LAW. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of
New York and for all purposes shall be construed in
accordance with the internal laws of said State.
SECTION 17. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 18. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 19. CONFLICTING TERMS. In the event of any inconsistency
or conflict between the Warrants and this Agreement, the terms, conditions and
provisions of the Warrants shall govern and control.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed, as of the day and year first above written.
XXXX & BUSTER'S INC.
By:
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Name: X.X. Xxxxxxx
Title: Senior Vice President and Chief
Financial Officer
THE BANK OF
NEW YORK, as
Warrant Agent
By:
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Title:
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EXHIBIT A
[Form of Warrant Certificate]
