Exhibit 99.2
VOTING AGREEMENT
----------------
VOTING AGREEMENT (this "Agreement") dated as of December 8, 2005, is
by and among WS MIDWAY HOLDINGS, INC., a Delaware corporation ("Holdings"), and
each of the shareholders of Xxxx & Buster's, Inc., a Missouri corporation,
listed on the signature page hereof as a shareholder (each, a "Shareholder"
and, collectively, the "Shareholders"). 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 the
date hereof (the "Merger Agreement"), by and among Holdings, WS Midway
Acquisition Sub, Inc., a Missouri corporation ("Merger Sub"), and the Company.
RECITALS
A. Each Shareholder "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) the number of shares of common stock, par value $0.01
per share, of the Company (the "Common Stock") set forth opposite such
Shareholder's name on Schedule A hereto (such shares of Common Stock, together
with all other shares of capital stock of the Company acquired by any
Shareholder after the date hereof and during the term of this Agreement, being
collectively referred to herein as the "Subject Shares").
B. Concurrently with the execution and delivery of this Agreement,
Holdings, Merger Sub and the Company are entering 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. As a condition to entering into the Merger Agreement, Holdings has
required that the Shareholders enter into this Agreement, and the Shareholders
desire to enter into this Agreement to induce Holdings to enter into the Merger
Agreement.
D. The Board of Directors of the Company has taken all actions
necessary and within its authority such that no restrictive provision of any
"fair price," "moratorium," "control share acquisition," "business
combination," "stockholder protection," "interested shareholder" or other
similar anti-takeover statute or regulation (including, without limitation,
Sections 351.407 and 351.459 of the General and Business Corporation Law of the
State of Missouri) or restrictive provision of any applicable provision in the
Restated Articles of Incorporation or Amended and Restated By-Laws of the
Company or comparable charter documents and by-laws of any of its Subsidiaries
is, or at the Effective Time will be, applicable to the Company, its
Subsidiaries, Holdings, Merger Sub, Common Stock, the Merger or any other
transaction contemplated by this Agreement.
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 Each Shareholder.
Each Shareholder, severally and not jointly, represents and warrants
to Holdings as follows:
(a) Authority. Such Shareholder has all requisite legal
power (corporate or other) 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 such Shareholder and constitutes a
valid and binding obligation of such Shareholder 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) No Conflicts. (i) No filing by such Shareholder 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 such
Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder 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 such shareholder is a party or by which
such shareholder or any of its Subject Shares or assets 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 such
Shareholder from performing its obligations under this Agreement.
(c) The Subject Shares. Schedule A sets forth, opposite such
Shareholder's name, the number of Subject Shares over which such Shareholder
has record or beneficial ownership as of the date hereof. As of the date
hereof, such Shareholder is the record or beneficial owner of the Subject
Shares denoted as being owned by such Shareholder on Schedule A and has the
sole power to vote (or cause to be voted) such Subject Shares. Except as set
forth on such Schedule A, neither such Shareholder nor any controlled affiliate
of such Shareholder 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. Such Shareholder has good and valid title to the Subject Shares
denoted as being owned by such Shareholder on Schedule A, 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, (ii)
as disclosed on Schedule A, or (iii) as would not prevent such Shareholder from
performing its obligations under this Agreement.
(d) Reliance By Holdings. Such Shareholder understands and
acknowledges that Holdings is entering into the Merger Agreement in reliance
upon such Shareholder'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 such Shareholder that
questions the validity of this Agreement or any action taken or to be taken by
such Shareholder in connection with this Agreement.
2. Representations and Warranties of Holdings.
Holdings hereby represents and warrants to the Shareholders 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 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.
(c) Reliance by the Shareholders. Holdings understands and
acknowledges that the Shareholders are entering into this Agreement in reliance
upon the execution and delivery of the Merger Agreement by Holdings.
3. Covenants of Each Shareholder.
Until the termination of this Agreement in accordance with Section 5,
each Shareholder, in its capacity as such, 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, each
Shareholder shall vote (or cause to be voted) the Subject Shares (and each
class thereof) held by such Shareholder (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. Each
Shareholder 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) Each Shareholder agrees not to, directly or indirectly,
(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 Shareholder'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. Such Shareholder further agrees not to commit or agree to take any
of the foregoing actions or take any action that would have the effect of
preventing, impeding, interfering with or adversely affecting its ability to
perform its obligations under this Agreement.
(c) Such Shareholder shall not, nor shall such Shareholder
permit any controlled affiliate of such Shareholder to, nor shall such
Shareholder act in concert with or permit any controlled 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. Such Shareholder shall not, and shall direct any
investment banker, attorney, agent or other adviser or representative of such
Shareholder 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. Each Shareholder hereby
represents that, as of the date hereof, it is not engaged in discussions or
negotiations with any party other than Holdings and Merger Sub with respect to
any Acquisition Proposal.
4. Shareholder Capacity.
Notwithstanding any provision herein to the contrary, no Person
executing this Agreement who is or becomes during the term of this Agreement a
director or officer of the Company shall be deemed to make any agreement or
understanding in this Agreement in such Person's capacity as a director or
officer. Each Shareholder is entering into this Agreement solely in his or her
capacity as the record holder or beneficial owner of, or the trustee of a trust
whose beneficiaries are the beneficial owners of, such Shareholder's Subject
Shares and nothing herein shall limit or affect any actions taken by a
Shareholder in his or her capacity as a director or officer of the Company to
the extent specifically permitted by the Merger Agreement or following the
termination of the Merger Agreement.
5. 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,
and (D) twelve 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).
6. Appraisal Rights.
To the extent permitted by applicable law, each Shareholder hereby
waives any rights of appraisal or rights to dissent from the Merger that it may
have under applicable law.
7. Publication.
Each Shareholder hereby authorizes Holdings and the Company to publish
and disclose in the Proxy Statement/Prospectus and the Registration Statement
(including any and all documents and schedules filed with the Securities and
Exchange Commission relating thereto) its identity and ownership of shares of
Common Stock and the nature of its commitments, arrangements and understandings
pursuant to this Agreement.
8. 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.
9. 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.
10. 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.
11. Amendment, Waivers, Etc.
This Agreement may be amended by Holdings and the Shareholders 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 the Shareholders. At
any time prior to the Effective Time, Holdings and the Shareholders 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 of the other party contained herein;
provided, however, that no failure or delay by Holdings or the Shareholders 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 the Shareholders to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of such party.
12. 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 the Shareholders 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.
13. 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 any Shareholder, at the address set forth under such
Shareholder's name on Schedule A hereto or to such other address as the party
to whom notice is to be given may have furnished to the other parties in
writing in accordance herewith.
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), including Schedule A hereto, 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]
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/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: President
SHAREHOLDERS:
-------------
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxx
---------------------------------
Xxxxxxxx X. Xxxxx
Schedule A
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SHAREHOLDERS
------------
Shareholder Common Stock Shares Pledged
----------- ------------ --------------
Xxxxx X. Xxxxxxxxx 472,085 372,085
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxx X. Xxxxxx 537,717 0
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx, Xx. 50,500 0
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxxx X. Xxxxx 35,000 0
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000 ____________ ____________
Total 1,095,302 372,085
