EXHIBIT 2.1
[XXXX AND BUSTERS LOGO]
FIRST AMENDMENT
AGREEMENT AND PLAN TO THE
BY AND AMONG OF MERGER
D&B ACQUISITION SUB, INC. D&B HOLDINGS I, INC.,
AND
XXXX & BUSTER'S, INC.
This FIRST AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER (this
"Amendment"), dated as of July 12, 2002, is entered into by and among D&B
Holdings I, Inc., a Delaware corporation ("Parent"), D&B Acquisition Sub, Inc.,
a Missouri corporation and wholly-owned subsidiary of Parent ("Purchaser") and
Xxxx & Buster's, Inc., a Missouri corporation (the "Company").
A. Parent, Purchaser and the Company entered into an Agreement and Plan
of Merger, dated as of May 30, 2002 (the "Agreement"), providing for the merger
of Purchaser with and into the Company.
B. In accordance with Section 9.10 of the Agreement, Parent, Purchaser
and the Company desire to enter into this Amendment to amend the terms of the
Agreement as provided herein.
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants contained herein, Parent, Purchaser and the Company agree as
follows:
1. Section 1.3 of the Agreement is deleted in its entirety and
replaced with the following:
1.3 SINGLE STEP MERGER. In the event that, upon
expiration of the Offer, no shares of Common Stock are
accepted by Purchaser for purchase and payment pursuant to the
Offer, Parent, Purchaser and the Company agree to proceed with
the Merger as expeditiously as reasonably possible subject to
all applicable terms and conditions contained in this
Agreement, provided that the obligations of Parent and
Purchaser to consummate the Merger shall also be conditioned
on (i) satisfaction of each of the conditions set forth in
Exhibit A (disregarding references to the Offer contained
therein) other than the Minimum Tender Condition and (ii)
notwithstanding anything to the contrary in Section 4.5 or
elsewhere in this Agreement, the funding from third party
lenders of at least $155 million of new debt financing and
availability of an additional $30 million line of credit from
third party lenders, in each case on commercially reasonable
terms as determined in the good faith judgment of Parent. If
this Section 1.3 applies, (x) the "Merger Consideration"
referred to in Section 2.8(a) and elsewhere in this Agreement
shall be $13.50 per share and (y) Section 7.1(d) shall not
apply.
2. Section 5.2(a)(iii) of the Agreement is amended to delete
"Offer" and insert in its place "Merger."
3. Section 7.1(e) of the Agreement is deleted in its entirety.
4. The following is inserted following Section 7.1 of the
Agreement:
7.2 ADDITIONAL CONDITION TO PARENT'S AND PURCHASER'S
OBLIGATION OF EFFECT THE MERGER. The obligation of Parent and
Purchaser to effect the Merger is subject to the satisfaction
or waiver on or prior to the Closing Date of the following
additional condition:
The representations and warranties by the Company
contained in this Agreement (which for purposes of this
Section 7.2 shall be read as though none of them contained any
Material Adverse Effect or other materiality qualifications)
shall be true and correct in all respects as of the date of
this Agreement and at the Effective Time, except where the
failure of such representations and warranties in the
aggregate to be true and correct in all respects, individually
or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect; provided, however,
that the representations in Section 3.3 (Capital Structure) as
to the number of issued and outstanding shares of capital
stock of the Company and Company Stock Options shall be true
and correct in all respects.
7.3 ADDITIONAL CONDITION TO THE COMPANY'S OBLIGATION
TO EFFECT THE MERGER. The obligation of the Company to effect
the Merger is subject to the satisfaction or waiver on or
prior to the Closing Date of the following additional
condition:
The representations and warranties by Parent and
Purchaser contained in this Agreement (which for purposes of
this Section 7.3 shall be read as though none of them
contained any Material Adverse Effect or other materiality
qualifications) shall be true and correct in all respects as
of the date of this Agreement and at the Effective Time,
except where the failure of such representations and
warranties in the aggregate to be true and correct in all
respects, individually or in the aggregate, have not had and
would not reasonably be expected to have a Material Adverse
Effect on the ability of Parent and Purchaser to consummate
the Merger.
5. Section 8.1(b)(iii) of the Agreement is deleted in its
entirety.
6. Section 8.1(c) of the Agreement is deleted in its entirety
and replaced with the following:
(c) by Parent, if the Company breaches any
representation or warranty or breaches or fails to perform in
any material respect any of its covenants contained in this
Agreement, which breach or failure to perform would give rise
to the failure of the condition set forth in Exhibit A or
Section 7.2;
7. Section 8.1(f)(i) of the Agreement is deleted in its
entirety and replaced with the following:
(i) if Parent or Purchaser breaches any
representation or warranty or breaches or fails to perform in
any material respect any of their respective covenants
contained in this Agreement which breach or failure to perform
would give rise to the failure of the condition set forth in
Section 7.3 or
8. Section 8.1(f)(ii) of the Agreement is amended to delete
"Offer" and insert in its place "Merger."
9. The first sentence of Section 8.2(b) of the Agreement is
amended to delete "$5.0 million" and insert in its place "$5.68
million."
10. Except as specifically modified by this Amendment, all
terms and conditions of the Agreement shall remain in full force and
effect without modification.
(Remainder of page intentionally left blank.)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date and year first written above.
D&B HOLDINGS I, INC. XXXX & BUSTER'S, INC.
By: By:
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Name: Name:
Title: Title:
D&B ACQUISITION SUB, INC.
By:
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Name:
Title:
