Dave & Buster’s Entertainment, Inc. (Performance Based) RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit 10.3
Xxxx & Buster’s Entertainment, Inc.
2014 Omnibus Incentive Plan
(Performance Based)
RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (this “Award Agreement”) is made effective as of June 29, 2022 (the “Date of Grant”), between Xxxx & Buster’s Entertainment, Inc., a Delaware corporation (the “Company”) and Xxxxxxxxxxx Xxxxxx (the “Participant”).
R E C I T A L S:
WHEREAS, the Company has adopted the Xxxx & Buster’s Entertainment, Inc. 2014 Omnibus Incentive Plan (as amended from time to time, the “Plan”); and
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the “Committee”) has determined that it would be in the best interests of the Company and its stockholders to grant the award (the “Award”) of performance-vesting restricted stock units (each, an “RSU”) provided for herein to the Participant pursuant to the Plan and the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
1. Grant of Award. The Company hereby grants to the Participant RSUs on the following terms:
(a) Upon achievement of target-level performance set forth in this Agreement, 157,931 RSUs may be earned under this Award (the “Target Achievable RSUs”) based on the volume-weighted average closing price of a share of the Company’s common stock for the consecutive 60-trading day period ending on the fifth anniversary of the Date of Grant (the “Average Share Price”, and the last day of such 60-trading day period, the “Closing Date”). For purposes of this Award Agreement, “Performance Period” means the period commencing on the Date of Grant and ending on the Closing Date.
(b) Each RSU represents one notional share of common stock, par value $.01 per share, of the Company (each, a “Share”).
2. Terms and Conditions.
(a) Calculation of Earned Portion. The Award shall be one hundred percent (100%) unvested as of the Date of Grant. Pursuant to the terms of the Plan and this Award Agreement, including, without limitation, Sections 3 and 4 below, as soon as reasonably practicable following the Closing Date, the Company shall determine the number RSUs, if any, that shall be deemed earned and eligible for vesting and settlement (such RSUs, “Earned RSUs”)
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in accordance with subsections (b) and (c) below. Any and all RSUs that are not deemed to be Earned RSUs shall be forfeited and canceled immediately without consideration and shall not be eligible for settlement in accordance with Section 3 hereof.
(b) Service Vesting. The Earned RSUs shall vest on the Closing Date, subject to the Participant’s continued employment with the Company through such date and subject to earlier vesting of all or a portion of the Earned RSUs in accordance with Subsection 2(c) below (as applicable, each such date is referred to herein as a “Vesting Date”).
(c) Performance Calculation. The RSUs shall be deemed earned as set forth in the table below based on the Average Share Price. If on the Closing Date, the Average Share Price fails to achieve the target level specified in the table below, then all RSUs shall be deemed unearned, forfeited, and canceled immediately without consideration. The RSUs that are deemed earned in accordance with this Section 2(c) shall be payable as of (and not before) the Settlement Date (defined below).
| Average Share Price |
Earned Percentage of RSUs | |
| Greater than or equal to $67.54 |
100% | |
| Less than $67.54 |
0% |
(i) Notwithstanding the foregoing, if at any time between the Date of Grant and the Closing Date, the volume-weighted average closing price of a share of the Company’s common stock for any consecutive 60-trading day period (the final day of such 60-trading day period, the “Interim Closing Date”) is greater than or equal to $67.54, then vesting shall occur in three installments as follows:
(1) Twenty-five percent (25%) of the RSUs will vest on the earlier of (x) the first anniversary of the Interim Closing Date or (y) the Closing Date; and
(2) Twenty-five percent (25%) of the RSUs will vest on the earlier of (x) second anniversary of the Interim Closing Date or (y) the Closing Date; and
(3) The remaining fifty percent (50%) of the RSUs (the “Remaining RSUs”) will vest on the Closing Date.
(ii) Further notwithstanding the foregoing, if at any time between the one-year anniversary of the Interim Closing Date and the Closing Date, the volume-weighted average closing price of a share of the Company’s common stock for any consecutive 60-trading day period (the final day of such 60-trading day period, the “Subsequent Closing Date”) is greater than or equal to $67.54, then vesting of the Remaining RSUs shall occur as follows (it being understood the vesting of the RSUs in Subsections 2(c)(ii)(1) and (2) shall be unaffected):
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(1) Fifty percent (50%) of the Remaining RSUs will vest on the earlier of (x) the first anniversary of the Subsequent Closing Date or (y) the Closing Date; and
(2) Fifty percent (50%) of the Remaining RSUs will vest on the earlier of (x) second anniversary of the Subsequent Closing Date or (y) the Closing Date.
(d) Change of Control. In the event of a Change in Control, notwithstanding Section 2(c), the following shall apply:
(i) Upon the occurrence of a Change in Control of the Company, if the Share Price is greater than or equal to $67.54 on the effective date of the Change in Control (the “CIC Date”), then all RSUs not already deemed to be Earned RSUs shall be converted to Earned RSUs, except that notwithstanding Sections 2(b) and 2(c), vesting of all then outstanding Earned RSUs shall occur as follows:
(1) Fifty percent (50%) of the then outstanding Earned RSUs will vest on the earlier of (x) the CIC Date or (y) the Closing Date; and
(2) Twenty-five percent (25%) of the then outstanding Earned RSUs will vest on the earlier of (x) first anniversary of the CIC Date or (y) the Closing Date; and
(3) Twenty-five percent (25%) of the then outstanding Earned RSUs will vest on the earlier of (x) second anniversary of the CIC Date or (y) the Closing Date.
(ii) If the Share Price is less than $67.54 on the CIC Date, then all RSUs not deemed to be Earned RSUs shall immediately terminate and be forfeited without consideration.
3. Settlement; Payment.
(a) Share Settlement. Pursuant to the terms of the Plan and this Award Agreement, including, without limitation, Section 4 below, and to the extent that it would not cause a violation of Section 409A, each vested Earned RSU shall be settled by the issuance of a Share as soon as practicable following the applicable Vesting Date, and in all events no later than the sixtieth (60th) day following such Vesting Date, as determined solely by the Company (the date of settlement, the “Settlement Date”). Vested and Earned RSUs settled via Share issuance shall be distributed to the Participant or the Participant’s legal representative; provided, that the Company may, at its election, either (a) on or after the Settlement Date, issue a certificate representing the Shares subject to this Award Agreement, or (b) not issue any certificate representing Shares subject to this Award Agreement and instead document the Participant’s or the Participant’s legal representative’s interest in the Shares by registering the Shares with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form.
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(b) Award Subject to Clawback Policy. The Participant agrees and acknowledges that the Participant is bound by, and the Award is subject to, any clawback policy adopted by the Committee from time to time.
4. Termination of Service. Notwithstanding anything herein to the contrary:
(a) Termination of Service Due to Death or Disability. Upon a termination of the Participant’s Service by reason of death or Disability that occurs:
(i) at any time prior to the Closing Date, then the Award shall be settled in accordance with Section 3 above in respect of 100% of the Target Achievable RSUs, notwithstanding the termination of the Participant’s Service, except that notwithstanding Section 2(b), such RSUs shall be immediately fully vested and thereafter settled within sixty (60) days following such termination of Service, subject to the applicable limitations set forth in Section 3 above; and
(ii) after the Closing Date and prior to the final Settlement Date, then the Award shall be settled in accordance with Section 3 above, in respect of the number of then-outstanding Earned RSUs, except that notwithstanding Section 2(b), such Earned RSUs shall be immediately fully vested and settled within thirty (30) days following such termination of Service, subject to the applicable limitations set forth in Section 3 above.
For purposes of this Award Agreement, “Disability” means (i) “Disability” as defined in any employment agreement between the Participant and the Company or any of its Affiliates, or (ii) if there is no such employment agreement or if it does not define Disability: the Participant is disabled to the extent that he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, or is receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of Xxxx & Buster’s Management Corporation, Inc. The determination of the Participant’s Disability shall be made in good faith by a physician reasonably acceptable to the Company.
(b) Termination of Service Due to Retirement. Upon a termination of the Participant’s Service by reason of Retirement that occurs:
(i) at any time prior to the Vesting Date, then the Award shall be settled in accordance with Section 3 above in respect of the number of RSUs that would have been earned pursuant to this Agreement based on actual performance during the full Performance Period, notwithstanding the termination of the Participant’s Service, multiplied by a fraction, the numerator of which is the number of days from the Date of Grant through and including the date of termination of Service, and the denominator of which is 1,825, except that notwithstanding Section 2(b), such RSUs shall be fully vested and settled on the Settlement Date next following such termination of Service, subject to the applicable limitations set forth in Section 3 above; and
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(ii) after the Vesting Date and prior to the final Settlement Date, then the Award shall be settled in accordance with Section 3 above, in respect of the number of then-outstanding Earned RSUs that would have vested on the Vesting Date coincident with or next following such termination of Service, except that notwithstanding Section 2(b), such RSUs shall be immediately fully vested and settled within thirty (30) days following such termination of Service, subject to the applicable limitations set forth in Section 3 above.
For purposes of this Award Agreement, “Retirement” means (i) “Retirement” as defined in any employment agreement between the Participant and the Company or any of its Affiliates, or (ii) if there is no such employment agreement or if it does not define Retirement: termination of the Participant’s Service, other than for Cause, after attaining (A) age sixty (60) and completing ten (10) years of continued Service (i.e., without any termination of Service) with the Company or its Affiliates or (B) age sixty-five (65).
(c) Termination without Cause or for Good Reason related to a Change of Control. Upon (i) a termination of the Participant’s Service by the Company or one of its successors or Affiliates without Cause or due to the Participant’s resignation for Good Reason (excluding termination by reason of death or Disability) (a “Specified Termination”) and (ii) the Specified Termination occurs either within ninety (90) days before or within twenty-four (24) months following the occurrence of a Change of Control of the Company (the “Protected Period”), then:
(i) If the Change in Control occurs at any time prior to the expiration of the Performance Period,
(1) All RSUs that are not deemed to be Earned RSUs shall be forfeited and canceled immediately without consideration and shall not be eligible for settlement in accordance with Section 3 hereof; and
(2) Any then-outstanding Earned RSUs shall be settled in accordance with Section 3 above, except that notwithstanding Section 2(b), such Earned RSUs shall be fully vested upon such termination (or, if later, such Change of Control) and settled within ten (10) days following such termination (or, if later, such Change of Control), subject to the applicable limitations set forth in Section 3 above; and
(ii) If the Change in Control occurs after the expiration of the Performance Period and prior to the final Settlement Date, the Award shall be settled in accordance with Section 3 above, in respect of the number of then-outstanding Earned RSUs, except that notwithstanding Section 2(b), such Earned RSUs shall be fully vested upon such termination (or, if later, such Change of Control) and settled within ten (10) days following such termination (or, if later, such Change of Control), subject to the applicable limitations set forth in Section 3 above;
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provided, that if a Specified Termination should occur prior to a Change of Control of the Company, the Award shall remain outstanding for up to ninety (90) days following such Specified Termination in order to determine whether such Specified Termination shall have occurred during a Protected Period such that the Award shall be eligible for settlement pursuant to this Section 4(c).
(d) Termination of Service without Cause. Upon a termination of the Participant’s Service by the Company or one of its successors or Affiliates without Cause that occurs:
(i) at any time prior to the Vesting Date, then the Award shall be settled in accordance with Section 3 above in respect of the number of RSUs that would have been earned pursuant to this Agreement based on actual performance during the full Performance Period, notwithstanding the termination of the Participant’s Service, multiplied by a fraction, the numerator of which is the number of days from the Date of Grant through and including the date of termination of Service, and the denominator of which is 1,825, except that notwithstanding Section 2(b), such RSUs shall be fully vested and settled on the Settlement Date next following the end of the full Performance Period, subject to the applicable limitations set forth in Section 3 above; and
(ii) after the Vesting Date and prior to the final Settlement Date, then the Award shall be settled in accordance with Section 3 above, in respect of the number of then-outstanding Earned RSUs that would have vested on the Vesting Date coincident with or next following such termination of Service, except that notwithstanding Section 2(b), such Earned RSUs shall be fully vested and settled within sixty (60) days following such termination of Service, subject to the applicable limitations set forth in Section 3 above.
(e) For purposes of this Award Agreement, “Cause” means (x) “Cause” as defined in any employment agreement between the Participant and the Company or any of its Affiliates, or (y) if there is no such employment agreement or if it does not define Cause: the willful and continued failure by the Participant to perform the duties assigned by the Company, failure to follow reasonable business-related directions from the Company, gross insubordination, theft from the Company or its Affiliates, habitual absenteeism or tardiness, conviction or plea of guilty or nolo contendere to a felony, misdemeanor involving fraud, theft or moral turpitude, or any other reckless or willful misconduct that is contrary to the best interests of the Company or materially and adversely affects the reputation of the Company.
(f) For purposes of this Award Agreement, “Good Reason” means (i) “Good Reason” as defined in any employment agreement between the Participant and the Company or any of its Affiliates, or (ii) if there is no such employment agreement or if it does not define Good Reason: Without the Participant’s consent, (A) a material reduction in the Participant’s annual base salary or (B) a relocation of the Participant’s primary place of employment with the Company by more than fifty (50) miles from that in effect as of the Date of Grant; provided, however, that neither item (A) nor item (B) shall constitute Good Reason unless the Participant has provided written notice to the Company within thirty (30) days of the occurrence of such event and the Company shall have failed to cure such event within thirty (30) days of receipt of such written notice.
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(g) Other Terminations of Service. Upon a termination of the Participant’s Service prior to the final Settlement Date for any reason other than pursuant to Sections 4(a), 4(b), 4(c) and 4(d) above, the Award, including any then-outstanding Earned RSUs, shall immediately terminate and be forfeited without consideration.
(h) Release. Upon a termination of the Participant’s Service prior to the final Settlement Date for termination without Cause pursuant to Section 4(d), settlement of any Award shall be conditioned first upon the Participant’s execution of a fully effective and non-revocable general release (“Release”) in favor of the Company, its Board of Directors, Affiliates, and employees, in such form as reasonably approved by the Company and the Participant within sixty (60) days of the Participant’s termination of Service, which Release shall be provided to the Participant within five (5) days of the Participant’s termination of Service.
5. No Right to Continued Service. The granting of the Award evidenced hereby and this Award Agreement shall impose no obligation on the Company or any Affiliate to continue the Service of the Participant and shall not lessen or affect any right that the Company or any Affiliate may have to terminate the Service of such Participant.
6. Shareholder Rights. Neither the Participant nor the Participant’s representative shall have any rights as a shareholder of the Company with respect to the RSUs until such Person receives the Shares, if any, issued upon settlement.
7. Non-Solicitation and Non-Hire. If the Participant has an employment agreement with the Company or any of its Subsidiaries that contains non-solicitation and/or non-hire covenants, the covenants are incorporated into this Award Agreement by reference. To the extent the Participant does not have an employment agreement containing such covenants, the following restrictive covenants shall apply:
As a material incentive for the Company to enter into this Award Agreement, during the term of the Participant’s employment with the Company or any of its Subsidiaries and for a period of twelve (12) months from the termination of the Participant’s employment for any reason (including, without limitation, resignation by the Participant) (the “Non-Solicitation and Non-Hire Period”) the Participant shall not, directly or indirectly, on the Participant’s own behalf or on behalf of any other person, partnership, entity, association, or corporation, induce or attempt to influence, induce, or encourage anyone who is or, within the six (6) months prior to the date of termination was, an employee of the Company or any of its Subsidiaries at or above the managerial level (including, without limitation, General Managers, Assistant General Managers, store departmental managers, and all higher-ranking managers) (for purposes of this Section 7, an “Employee”), client, supplier, vendor, licensee, distributor, contractor or other business relation of the Company or any of its Subsidiaries to cease doing business with, adversely alter or interfere with its business relationship with, the Company or any of its Subsidiaries. Further, during the Non-Solicitation and Non-Hire Period, the Participant shall not, on the Participant’s own behalf or
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on behalf of any other person, partnership, entity, association, or corporation, (i) solicit or seek to hire any Employee, or in any other manner attempt directly or indirectly to influence, induce, or encourage any Employee to leave their employ (provided, however, that nothing herein shall restrict the Participant from engaging in any general solicitation that is not specifically targeted at such persons), nor shall the Participant use or disclose to any person, partnership, entity, association, or corporation any information concerning the names, addresses or personal telephone numbers of any Employee, (ii) without the Company’s prior written consent, hire, employ or engage as a consultant any Employee, or (iii) directly or indirectly solicit, induce, or attempt to influence, induce, or encourage any person, partnership, entity, association, or corporation that is a client or customer of the Company or its Subsidiaries and who or which the Participant helped to schedule or conduct a special event or corporate teambuilding while employed by the Company or its Subsidiaries to schedule or conduct a special event or corporate teambuilding through another person, partnership, entity, association, or corporation.
This Section 7 shall survive termination or settlement of the Award and termination or satisfaction of the Award Agreement.
8. Securities Laws/Legend on Certificates. The issuance and delivery of Shares shall comply with all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company’s securities may then be traded. If the Company deems it necessary to ensure that the issuance of securities under the Plan is not required to be registered under any applicable securities laws, the Participant shall deliver to the Company an agreement or certificate containing such representations, warranties and covenants as the Company which satisfies such requirements. The certificates representing the Shares shall be subject to such stop transfer orders and other restrictions as the Committee may deem reasonably advisable, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
9. Transferability. Unless otherwise provided by the Committee, the Award may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Participant other than by will or by the laws of descent and distribution, and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Affiliate; provided that, the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. No such permitted transfer of the Award to heirs or legatees of the Participant shall be effective to bind the Company unless the Committee shall have been furnished with written notice thereof and a copy of such evidence as the Committee may deem necessary to establish the validity of the transfer and the acceptance by the transferee or transferees of the terms and conditions hereof.
10. Withholding. The Participant may be required to pay to the Company or any Affiliate and the Company shall have the right and is hereby authorized to withhold any applicable withholding taxes in respect of the Award, its exercise or transfer and to take such other action as may be necessary in the opinion of the Committee to satisfy all obligations for the payment of such withholding taxes.
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11. Notices. Any notification required by the terms of this Award Agreement shall be given in writing and shall be deemed effective upon personal delivery or within three (3) days of deposit with the United States Postal Service, by registered or certified mail, with postage and fees prepaid. A notice shall be addressed to the Company, Attention: General Counsel, at its principal executive office and to the Participant at the address that he or she most recently provided to the Company.
12. Entire Agreement. This Award Agreement and the Plan constitute the entire contract between the parties hereto with regard to the subject matter hereof and supersede any other agreements, representations or understandings (whether oral or written and whether express or implied) which relate to the subject matter hereof.
13. Waiver. No waiver of any breach or condition of this Award Agreement shall be deemed to be a waiver of any other or subsequent breach or condition whether of like or different nature.
14. Successors and Assigns. The provisions of this Award Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Award Agreement and have agreed in writing to be joined herein and be bound by the terms hereof.
15. Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Award Agreement and all claims, causes of action or proceedings (whether in contract, in tort, at law or otherwise) that may be based upon, arise out of or relate to this Award Agreement shall be governed by the internal laws of the State of Delaware, excluding any conflicts or choice-of-law rule or principle that might otherwise refer construction or interpretation of the Award Agreement to the substantive law of another jurisdiction. Each party to this Award Agreement agrees that it shall bring all claims, causes of action and proceedings (whether in contract, in tort, at law or otherwise) that may be based upon, arise out of or be related to the Award Agreement exclusively in the Delaware Court of Chancery or, in the event (but only in the event) that such court does not have subject-matter jurisdiction over such claim, cause of action or proceeding, exclusively in the United States District Court for the District of Delaware (the “Chosen Court”) and hereby (i) irrevocably submits to the exclusive jurisdiction of the Chosen Court, (ii) waives any objection to laying venue in any such proceeding in the Chosen Court, (iii) waives any objection that the Chosen Court is an inconvenient forum or does not have jurisdiction over any party and (iv) agrees that service of process upon such party in any such claim or cause of action shall be effective if notice is given in accordance with this Award Agreement.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY CLAIM OR CAUSE OF ACTION (WHETHER IN CONTRACT, IN TORT, AT LAW OR OTHERWISE) INSTITUTED BY OR AGAINST SUCH PARTY IN RESPECT OF ITS, HIS OR HER OBLIGATIONS HEREUNDER.
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16. Award Subject to Plan. By entering into this Award Agreement the Participant agrees and acknowledges that the Participant has received and read a copy of the Plan. The Award is subject to the Plan. The terms and provisions of the Plan as it may be amended from time to time are hereby incorporated herein by reference. In the event of a conflict between any term or provision contained herein and a term or provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan.
17. No Guarantees Regarding Tax Treatment. The Participant shall be responsible for all taxes with respect to the Award. The Committee and the Company make no guarantees regarding the tax treatment of the Award.
18. Amendment. The Committee may amend or alter this Award Agreement and the Award granted hereunder at any time, subject to the terms of the Plan.
19. Signature in Counterparts. This Award Agreement may be signed in counterparts, manually or electronically, and each of which will be an original, with the same effect as if the signatures to each were upon the same instrument.
20. Electronic Signature and Delivery. This Award Agreement may be accepted by return signature or by electronic confirmation. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Award Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of this Agreement or any other document contemplated hereby bearing an original or electronic signature by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original or electronic signature.
21. Severability. The provisions of this Award Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions shall nevertheless be binding and enforceable.
[signature page follows]
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IN WITNESS WHEREOF, the Company and the Participant have executed this Restricted Stock Unit Award Agreement as of the date first set forth above.
| PARTICIPANT |
|
|
| Xxxxxxxxxxx Xxxxxx |
| XXXX & BUSTER’S ENTERTAINMENT, INC. | ||
| By: |
| |
| Xxxxxx X. Xxxxxx | ||
| General Counsel, Secretary & SVP of HR | ||
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