EXHIBIT 10.4
EXECUTED COPY
AGREEMENT AND WAIVER
THIS AGREEMENT AND WAIVER is made, entered into and effective as of the
16th day of May, 2003, by and among Midway Games Inc. (the "CORPORATION"),
Peconic Fund, Ltd., Smithfield Fiduciary LLC and Xxxx X. Xxxxxxxx (collectively,
the "INVESTORS").
W I T N E S S E T H
WHEREAS, the Investors own shares of the Corporation's Series B Convertible
Preferred Stock, par value $0.01 per share (the "SERIES B PREFERRED STOCK")
and/or warrants (the "SERIES B WARRANTS") to purchase shares of the
Corporation's common stock, par value $0.01 per share (the "COMMON STOCK"),
which 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;
WHEREAS, on the date hereof the Corporation is entering into a securities
purchase agreement pursuant to which the Corporation is issuing shares of its
Series C Convertible Preferred Stock, par value $0.01 per share (the "SERIES C
PREFERRED STOCK") and warrants to purchase shares of Common Stock (the "SERIES C
WARRANTS");
WHEREAS, Section 2 of the Certificate of Designations, Preferences and
Rights of Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF
DESIGNATION") and Section 8 of the Series B Warrants grant the Investors, under
certain circumstances, anti-dilution rights which may be triggered by the
issuance and sale of the Series C Preferred Stock and the Series C Warrants
(collectively, the "ANTI-DILUTION RIGHTS");
WHEREAS, the Investors desire to irrevocably waive the Anti-Dilution Rights
set forth in the Series B Certificate of Designations and the Series B Warrants
solely with respect to the issuance of Series C Preferred Stock and the Series C
Warrants and the issuance of any shares of Common Stock issuable upon exercise
or conversion thereof; and
WHEREAS, as a condition to the closing of the Series C Transaction, the
Corporation must redeem all outstanding shares of the Series B Preferred Stock
for an amount per share of such Series B Preferred Stock equal to the Maturity
Date Redemption Price (as such term is defined in the Series B Certificate of
Designations).
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, the parties hereby agree as follows:
1. WAIVER. The Investors agree to irrevocably waive the Anti-Dilution
Rights set forth in the Series B Certificate of Designations and the Series B
Warrants solely with respect to any such Anti-Dilution Rights that may be
triggered by the issuance of the Series C Preferred Stock and the Series C
Warrants and the issuance of any shares of Common Stock issuable upon exercise
or conversion thereof.
2. AGREEMENT. Concurrent with the closing of the Series C Transaction,
the Company and the Investors agree to have any shares of Series B Preferred
Stock owned by any Investor redeemed by the Corporation at the Maturity Date
Redemption Price.
EXECUTED COPY
3. 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.
EXECUTED COPY
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
PECONIC FUND, LTD.
By: Ramius Capital Group, LLC
Its: Investment Adviser
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
SMITHFIELD FIDUCIARY LLC
By: /s/ Xxxx X. Chill
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Name: Xxxx X. Chill
Title: Authorized Signatory
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
