Exhibit 99.5
D&B ACQUISITION SUB, INC.
D& B HOLDINGS I, INC.
c/o Gibson, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
July 11, 2002
Xx. Xxxxx Xxxxxxxxxx
President & Equity Portfolio Manager
Rutabaga Capital Management
00 Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, XX 00000
Re: Xxxx & Buster's, Inc.
This letter sets forth our agreement that, for the purpose of inducing D&B
Holdings I, Inc., a Delaware corporation ("Parent") and D&B Acquisition Sub,
Inc., a Missouri corporation and wholly-owned subsidiary of Parent
("Purchaser"), to enter into an amendment to the Agreement and Plan of Merger
(as amended, the "Merger Agreement") by and among Parent, Purchaser and Xxxx &
Buster's, Inc. (the "Company") pursuant to which Purchaser will agree to merge
with and into the Company, and holders of shares of Common Stock, par value $.01
per share, of the Company (the "Common Stock"), will receive $13.50 cash per
share of Common Stock, you:
(a) hereby agree with the Purchaser and Parent that, at any meeting of the
Company's stockholders called for the purpose of acting upon approval of the
transaction contemplated by the Merger Agreement (the "Transaction"), and at any
adjournment or postponement thereof, or in connection with any written consent
of the Company's stockholders in lieu of such a meeting, you will vote all
shares of capital stock of the Company owned or controlled by you, whether now
owned or controlled or hereafter acquired or controlled (the "Shares"), in favor
of approval of the Transaction;
(b) hereby appoint Xxxxxx X. Xxxxxxxxxx and Xxxxx Xxxxx, and each of them,
as the proxy of the undersigned, each with full power of substitution, to vote
all of the Shares on behalf of the undersigned at any meeting of stockholders of
the Company called for the purpose of acting upon the Transaction, and at any
adjournment or postponement thereof, with the same force and effect as such vote
would have if the undersigned were personally present at such meeting, in favor
of approval of the Transaction; this proxy, being coupled with an interest, is
irrevocable; and
(c) agree that in connection with any transfer of any of the Shares, you
will obtain from the transferee and deliver to Purchaser and Parent a letter
substantially in the form hereof; and acknowledge that the Company has agreed
not to permit any such transfer unless you have complied with the foregoing
requirements.
This agreement shall terminate and the proxy granted hereby shall expire
upon the earlier of (a) termination of the Merger Agreement by the Company in
accordance with its terms in order to accept a Superior Proposal (as defined in
the Merger Agreement), (b) any other termination of the Merger Agreement in
accordance with its terms or (c) the consummation of the Closing (as defined in
the Merger Agreement).
Notwithstanding any language in this document, we have the right to sell
any, or all, of our stock of Xxxx & Buster's, Inc. in the open market at any
time.
Please indicate your consent and agreement to the foregoing by signing
where indicated below.
D&B ACQUISITION SUB, INC.
D&B HOLDINGS I, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx, President
Agreed to and accepted this 12th day of July, 2002.
By: /s/ Xxxxx Xxxxxxxxxx
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Name/Title: Xxxxx Xxxxxxxxxx
President & Equity Portfolio Manager
