AGREEMENT AND WAIVER
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THIS AGREEMENT AND WAIVER is made, entered into and effective as of the 2nd day of April, 2004, by and among Midway Games Inc. (the "Corporation"), Portside Growth and Opportunity Fund (f/k/a Peconic Fund, Ltd.), Smithfield Fiduciary LLC and Xxxx X. Xxxxxxxx (collectively, the "Investors") each of whom own warrants (the "Series B Warrants") to purchase shares of the Corporation's common stock, par value $0.01 per share (the "Common Stock"). The Series B Warrants were acquired by the Investors pursuant to the Securities Purchase Agreement, dated as of May 22, 2001, by and among the Corporation and the Investors.
W I T N E S S E T H
WHEREAS, Section 8(a) of the Series B Warrants grants the Investors, under certain circumstances, anti-dilution rights (collectively, the "Anti-Dilution Rights"); and
WHEREAS, the Investors desire to waive irrevocably the Anti-Dilution Rights set forth in the Series B Warrants with respect to the issuance of securities as consideration for mergers or consolidations or the acquisition of businesses, products, licenses or other assets of other Persons, in each case not for capital raising purposes.
NOW, THEREFORE, in consideration of the mutual covenants and premises contained herein, the parties hereby agree as follows:
Waiver. Each Investor agrees to waive irrevocably the Anti-Dilution Rights set forth in Section 8(a) of the Series B Warrant solely with respect to the Corporation's issuance of securities as consideration for mergers or consolidations or the acquisition of businesses, products, licenses or other assets of other Persons, in each case not for capital raising purposes.
Miscellaneous. This Waiver may be executed in any number of counterparts, each of which shall be an original and all of which shall be deemed one and the same instrument. This Waiver shall be governed by the laws of the State of New York, without regard to its rules of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and Waiver as of the day and year first above written.
| MIDWAY GAMES INC. | |||
By: |
/s/ XXXXX X. XXXXXX |
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| Name: | Xxxxx X. Xxxxxx | ||
| Title: | President and Chief Executive Officer | ||
PORTSIDE GROWTH AND OPPORTUNITY FUND (f/k/a PECONIC FUND, LTD.) By: Ramius Capital Group, LLC Its: Investment Advisor |
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By: |
/s/ XXXXXXX XXXXX |
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| Name: | Xxxxxxx Xxxxx | ||
| Title: | Authorized Signatory | ||
SMITHFIELD FIDUCIARY LLC |
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By: |
/s/ XXXXX XXXXXXX |
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| Name: | Xxxxx Xxxxxxx | ||
| Title: | Authorized Signatory | ||
/s/ XXXX X. XXXXXXXX Xxxx X. Xxxxxxxx |
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