EXHIBIT (e)(6)
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") is entered
into as of ______________, 2002, by and among D&B Holdings I, Inc., a Delaware
corporation ("Parent"), Xxxx & Buster's, Inc., a Missouri corporation (the
"Company"), and _____________ ("Stockholder"). The Closing Date, as defined in
the Merger Agreement (as defined below), shall be the "Effective Date" of this
Agreement.
RECITALS
A. The Company has entered into an Agreement and Plan of
Merger with Parent and D&B Acquisition Sub, Inc. ("Purchaser"), a wholly-owned
subsidiary of Parent (the "Merger Agreement"), dated as of ____________, 2002,
which provides (subject to the conditions set forth therein) for the merger of
Purchaser with and into the Company, with the Company as the surviving
corporation (the "Merger"). As a result of the Merger, the Company will become a
wholly-owned subsidiary of Parent, and Stockholder will receive shares of common
stock of Parent in exchange for Stockholder's shares of common stock of the
Company. Capitalized terms used but not defined herein shall have their
respective meanings set forth in the Merger Agreement.
B. As a condition and essential inducement to Parent's and
Purchaser's willingness to enter into the Merger Agreement and in consideration
of the transactions contemplated by the Merger Agreement, Stockholder has agreed
to the noncompetition, nonsolicitation, confidentiality and other agreements set
forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and
the covenants and agreements in the Merger Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Stockholder hereby covenants and agrees as follows:
1. NONCOMPETITION.
(a) During the period commencing at the Effective Date and
ending on the date that is two (2) years after the date on which the Effective
Date occurs, Stockholder shall not engage in or become an employee of or
consultant or adviser of or have any direct or indirect interest in any other
person, firm, corporation or other entity engaged in, any business activities
directly competitive with the business of the Company or any of its subsidiaries
or licensees.
(b) Notwithstanding anything to the contrary set forth in
Section 1(a), Stockholder may own (solely as a passive investor) securities in
any publicly-held company that may be engaged in the Business, but only to the
extent Stockholder does not own, of record or beneficially, more than an
aggregate of five percent (5%) of the outstanding securities of such company
that represent (either directly or upon conversion or exchange of any other
securities) equity ownership thereof.
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(c) The restrictions set forth in this Section 1 shall apply
in every county and metropolitan area in the United States and each country in
which a licensee of the Company is located (the "Business Area").
(d) As used herein, "Affiliate" means, with respect to any
Person, any other Person directly or indirectly controlling, controlled by or
under direct or indirect common control with such first Person.
(e) As used herein, "Person" means an individual, corporation,
partnership, limited liability company, association, trust, unincorporated
organization or other legal entity.
2. NONSOLICITATION OF EMPLOYEES. During the period commencing
at the Effective Date and ending on the date that is two (2) years after the
date on which the Effective Date occurs, Stockholder shall not, either on his or
her own account or for any company, limited liability company, partnership,
joint venture or other Person (including, without limitation, through any
existing or future Affiliate), solicit any employee of Parent or the Company or
any existing or future Affiliate of Parent or the Company to leave his or her
employment or induce or attempt to induce any such employee to terminate or
breach his or her employment agreement with Parent or the Company or any
existing or future Affiliate of Parent or the Company, if any. Notwithstanding
the foregoing, Stockholder may place general advertisements for prospective
employees, either on his or her own account or for any company, in media and in
other forms directed to the general public, including but not limited to
newspapers, television, radio and non-Business specific Internet job boards;
provided that the hiring of any employee of Parent or the Company or any of
their existing or future Affiliates responding thereto shall be deemed a
solicitation of such person.
3. NONSOLICITATION OF SUPPLIERS. During the period commencing
at the Effective Date and ending on the date that is two (2) years after the
date on which the Effective Date occurs, Stockholder shall not, directly or
indirectly (including, without limitation, through any existing or future
Affiliate), solicit, cause in any part or encourage any current or future
supplier to the Company or any existing or future Affiliate of the Company to
cease doing business in whole or in part with the Company or any such Affiliate
with respect to the Business.
4. STAY OF TIME. In the event a court of competent
jurisdiction or other Person mutually selected by the parties to resolve any
dispute (collectively a "Court") has determined that Stockholder has violated
the provisions of this Agreement, the running of the time period of such
provisions so violated shall be automatically suspended as of the date of such
violation and shall be extended for the period of time from the date such
violation commenced through the date that the Court determines that such
violation has permanently ceased.
5. INJUNCTIVE RELIEF. The remedy at law for any breach of this
Agreement is and will be inadequate, and in the event of a breach or threatened
breach by Stockholder of this Agreement, Parent and its existing and future
Affiliates, if any, shall be entitled to an injunction restraining Stockholder
from breaching or otherwise violating any provision of this Agreement. Nothing
herein contained shall be construed as prohibiting Parent and its existing and
future Affiliates, from pursuing any other remedies available to it or them for
such breach or threatened breach, including, without limitation, the recovery of
damages from Stockholder.
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6. NOTICES. All notices and other communications pursuant to
this Agreement shall be in writing and shall be deemed given if delivered
personally, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the addresses set forth below or to such other address as the party
to whom notice is to be given may have furnished to the other parties hereto in
writing in accordance herewith. Any such notice or communication shall be deemed
to have been delivered and received (a) in the case of personal delivery, on the
date of such delivery, (b) in the case of a nationally-recognized overnight
courier in circumstances under which such courier guarantees next business day
delivery, on the next business day after the date when sent and (c) in the case
of mailing, on the fifth business day following that on which the piece of mail
containing such communication is posted:
if to Parent or the Company, to:
Xxxx & Buster's, Inc.
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: E. Xxxxxxx Xxxxxxx, Esq.
if to Stockholder, to:
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
party hereto may give any notice, request, demand, claim or other communication
hereunder using any other means (including ordinary mail or electronic mail),
but no such notice, request, demand, claim or other communication shall be
deemed to have been duly given unless and until it actually is received by the
individual for whom it is intended.
7. SEPARATE COVENANTS. This Agreement shall be deemed to
consist of a series of separate covenants, one for each city, county, state,
country or other region included within the Business Area. The parties expressly
agree that the character, duration and geographical scope of this Agreement are
reasonable in light of the circumstances as they exist on the date upon which
this Agreement has been executed. However, should a determination nonetheless be
made by a Court of competent jurisdiction at a later date that the character,
duration or geographical scope of this Agreement is unreasonable in light of the
circumstances as
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they then exist, then it is the intention and the agreement of Parent, the
Company and Stockholder that this Agreement shall be construed by the Court in
such a manner as to impose only those restrictions on the conduct of Parent and
Stockholder that are reasonable in light of the circumstances as they then exist
and as are necessary to assure Parent and its existing and future Affiliates of
the intended benefit of this Agreement. If, in any proceeding, a Court shall
refuse to enforce all of the separate covenants deemed included herein because,
taken together, they are more extensive than necessary to assure Parent and its
existing and future Affiliates of the intended benefit of this Agreement, it is
expressly understood and agreed among the parties hereto that those of such
covenants that, if eliminated, would permit the remaining separate covenants to
be enforced in such proceeding shall, for the purpose of such proceeding, be
deemed eliminated from the provisions hereof.
8. SEVERABILITY. If any provision of this Agreement shall
otherwise contravene or be invalid under the laws of any state, country or other
jurisdiction where this Agreement is applicable but for such contravention or
invalidity, such contravention or invalidity shall not invalidate all of the
provisions of this Agreement but rather it shall be construed, insofar as the
laws of that state or other jurisdiction are concerned, as not containing the
provision or provisions contravening or invalid under the laws of that state or
jurisdiction, and the rights and obligations created hereby shall be construed
and enforced accordingly.
9. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the internal laws (without reference to choice
or conflict of laws) of the State of Delaware.
10. ARBITRATION. Any controversy or dispute among the parties
arising in connection with this Agreement shall be submitted to a panel of three
arbitrators and finally settled by arbitration in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association. Each
of the disputing parties shall appoint one arbitrator, and these two arbitrators
shall independently select a third arbitrator. Arbitration shall take place in
Dallas, Texas, or such other location as the arbitrators may select. The
prevailing party in such arbitration shall be entitled to the award of all costs
and attorneys' fees in connection with such action as determined by such
arbitration panel. Any award for monetary damages resulting from nonpayment of
sums due hereunder shall bear interest from the date on which such sums were
originally due and payable. Judgment upon the award rendered may be entered in
any court having jurisdiction or application may be made to such court for
judicial acceptance of the award and an order of enforcement, as the case may
be.
11. AMENDMENTS AND WAIVERS.
(a) This Agreement may be modified only by a written
instrument duly executed by each party hereto.
(b) No waiver by a party of any default, misrepresentation or
breach of a warranty or covenant hereunder, whether intentional or not, shall be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of a warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent occurrence. No failure or delay by a party
hereto in exercising any right, power or privilege hereunder shall operate as a
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waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided under applicable law.
12. ATTORNEYS' FEES. Should any litigation, arbitration or
other proceeding be commenced between the parties concerning this Agreement
(including, without limitation, the enforcement hereof and the rights and duties
of the parties hereunder), the party prevailing shall be entitled, in addition
to such other relief as may be granted, to such party's attorneys' fees and
expenses in connection with such litigation, arbitration or other proceeding.
13. ENTIRE AGREEMENT. This Agreement, together with the Merger
Agreement and the ancillary documents referred to in the Merger Agreement and
executed in connection therewith, contains the entire understanding of the
parties and supersedes all prior agreements and understandings relating to the
subject matter hereof.
14. COUNTERPARTS; FACSIMILE. This Agreement may be executed by
the parties in separate counterparts and by facsimile, each of which, when so
executed and delivered, shall be enforceable against the parties actually
executing such counterparts, and all of which, when taken as a whole, shall
constitute one and the same instrument.
15. SECTION HEADINGS AND REFERENCES. The headings of each
Section, subsection or other subdivision of this Agreement are for reference
only and shall not limit or control the meaning thereof. All references herein
to a Section are references to a Section of this Agreement, unless otherwise
specified, and include all subparts thereof.
16. ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, heirs,
personal representatives and permitted assigns. Neither this Agreement nor any
right, remedy, obligation or liability arising hereunder or by reason hereof nor
any of the documents executed in connection herewith may be assigned by any
party without the consent of the other parties; provided, however, that the
Company may assign its rights hereunder, without the consent of Stockholder, to
any existing or future Affiliate of the Company and to any Person that acquires
or succeeds to all or any part of the Business. No such assignment shall relieve
the assigning party of its obligations hereunder if such assignee does not
perform such obligations.
17. FURTHER ASSURANCES. From time to time, at Parent's request
and without further consideration, Stockholder shall execute and deliver such
additional documents and take all such further action as reasonably requested by
Parent to be necessary or desirable to make effective, in the most expeditious
manner possible, the terms of this Agreement.
18. EXPENSES. Each party hereto shall pay his, her or its own
expenses in connection with this Agreement.
19. TERM. The term of this Agreement commences on the
Effective Date and shall terminate two (2) years from the Effective Date.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf as of the day and year first above written.
D&B HOLDINGS I, INC.
By:
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Name:
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Title:
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XXXX & BUSTER'S, INC.
By:
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Name:
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Title:
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STOCKHOLDER
By:
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Name:
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