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Exhibit 10.29
RIGHT OF FIRST REFUSAL AGREEMENT
AGREEMENT dated as of the 6th day of April 1998 between WMS INDUSTRIES INC.
("WMS"), a Delaware corporation, and MIDWAY GAMES INC. ("Midway"), a Delaware
corporation, each with an address at 0000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000.
W I T N E S S E T H :
WHEREAS, on the date hereof, WMS is distributing (the "Distribution") all
of its shares of Midway's common stock to holders of the shares of WMS' common
stock outstanding on March 31, 1998;
WHEREAS, prior to the Distribution, Midway has been a majority-owned
subsidiary of WMS;
WHEREAS, the parties have provided for certain arrangements between
themselves pursuant to a Manufacturing Agreement, a Confidentiality and
Non-Competition Agreement and other agreements, each dated as of the date hereof
(the "Contractual Arrangements"); and
WHEREAS, the parties desire to set forth the terms of an arrangement
pursuant to which Midway shall have a right of first refusal with respect to any
sale by WMS of its manufacturing plant located in Waukegan, Illinois (the
"Waukegan Plant").
NOW, THEREFORE, in consideration of the premises, the Contractual
Arrangements and the mutual covenants herein contained and intending to be
legally bound, the parties hereby agree as follows:
1. CERTAIN DEFINITIONS. The following terms as used in this Agreement shall
have the meanings set forth below:
1.1 "Midway" means Midway and its subsidiaries, except where the context
otherwise requires.
1.2 "WMS" means WMS and its subsidiaries, except where the context
otherwise requires.
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2. RIGHT OF FIRST REFUSAL.
2.1 If at any time WMS receives a bona fide offer from a third party to
purchase the Waukegan Plant, or any material part thereof, which offer is not
made in connection with a sale of substantially all of WMS's assets and business
as a going concern or a sale of substantially all of the capital stock of WMS,
and which offer WMS intends to accept, then WMS shall, prior to accepting such
offer, promptly send a written notice setting forth the terms of such offer (the
"Offer Notice") to Midway, and Midway may elect to purchase the Waukegan Plant
on the same terms as those stated in the Offer Notice by notice (the "Acceptance
Notice") given within twenty (20) days after the giving of the Offer Notice,
time being of the essence. Nothing in this Agreement is intended to preclude
Midway from making an offer to purchase the Waukegan Plant at any time.
2.2 In the event that within such 20 day period Midway fails to give the
Acceptance Notice, WMS shall be free to accept the third party's offer on the
terms set forth in the Offer Notice. If WMS fails to complete the sale to such
third party within 180 days after the date of the Offer Notice, then WMS shall
again be subject to the requirements of Section 2.1 before selling the Waukegan
Plant to the same or any other third party.
2.3 In no event shall Midway have any right pursuant to this Agreement to
purchase any greater or lesser part of the Waukegan Plant than that specified in
the Offer Notice.
3. EFFECTIVE DATE AND TERM. This Agreement is effective as of April 6, 1998 and
shall expire on April 5, 2008.
4. MISCELLANEOUS.
4.1 No waiver by either party of any default shall be effective unless in
writing, nor shall any such waiver operate as a waiver of any other default or
of the same default on any future occasion.
4.2 Each party warrants and represents that proceeding herewith is not
inconsistent in any material way with any contractual obligations, expressed or
implied, undertaken with any third party.
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4.3 In the event that any term or provision of this Agreement shall
violate any applicable statute, ordinance or rule of law in any jurisdiction in
which it is used, or otherwise be unenforceable, such provision shall be
ineffective in such jurisdiction only to the extent of such violation without
invalidating any other provision hereof.
4.4 Neither party shall, without the prior written consent of the other,
assign any rights or delegate any obligations under this Agreement, such consent
not to be unreasonably withheld, conditioned or delayed.
4.5 The headings used in this Agreement are inserted only for the purpose
of convenience and reference, and in no way define or limit the scope or intent
of any provision or part hereof.
4.6 This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. Nothing
herein, expressed or implied, shall be construed to give any other person any
legal or equitable rights hereunder. No person shall be deemed to be a third
party beneficiary of this Agreement. Nothing herein shall be construed to be an
admission or waiver of any rights, claims and defenses the parties may have
against third parties, which rights, claims and defense the parties specifically
reserve.
4.7 All notices and other communications hereunder shall be in writing and
shall be delivered by hand, by facsimile or mailed by registered or certified
mail (return receipt requested) to the parties at the addresses set forth on the
first page of this Agreement (or at such other addresses for a party as shall be
specified by like notice) and shall be deemed given on the date on which such
notice is received.
4.8 Each party hereto shall take such actions and execute such documents
and instruments as may be reasonably requested by the other party to implement
the terms and provisions of this Agreement.
4.9 All controversies and disputes arising out of or under this Agreement
shall be determined pursuant to the laws of the State of Illinois, United States
of America, regardless of the laws that might be applied under applicable
principles of conflicts of laws.
4.10 This Agreement constitutes the entire understanding between the
parties hereto (and supersedes all prior written or oral communications)
relating to the subject matter covered
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in this Agreement. No amendment, modification, extension or failure to enforce
any condition of this Agreement by either party shall be deemed a waiver of any
of its rights herein. This Agreement shall not be amended except by a writing
executed by all the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WMS INDUSTRIES INC.
By:/s/ Xxxxxx X. Xxxx, Xx.
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Xxxxxx X. Xxxx, Xx.
Vice President-Finance
MIDWAY GAMES INC.
By:/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
President
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