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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Dave & Buster's, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
23833N104
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(CUSIP Number)
Greg S. Feldman
Wellspring Capital Management LLC
Lever House
390 Park Avenue
New York, NY 10022
(212) 318-9800
Copy to
William S. Rubenstein
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10022
(212) 735-3000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 20, 2006
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(Date of Event Which Requires Filing of this Statement)
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* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g),
check the following box [_].
Note. Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WS Midway Holdings, Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [x]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
BK, AF
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. NUMBER OF SHARES BENEFICIALLY
OWNED BY EACH REPORTING
NUMBER OF PERSON WITH SOLE VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY ---------------------------------------
EACH 8. SHARED VOTING POWER
REPORTING
PERSON 2,409,702*
WITH ---------------------------------------
9. SOLE DISPOSITIVE POWER
None
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10. SHARED DISPOSITIVE POWER
None
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,409,702*
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.9%*
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14. TYPE OF REPORTING PERSON
CO
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* See discussion in Items 4 and 5 of Schedule 13D and Amendment No. 1
thereto.
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1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wellspring Capital Management LLC
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [x]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
OO
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) [_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7. NUMBER OF SHARES BENEFICIALLY
OWNED BY EACH REPORTING
NUMBER OF PERSON WITH SOLE VOTING POWER
SHARES
BENEFICIALLY None
OWNED BY -------------------------------------
EACH 8. SHARED VOTING POWER
REPORTING
PERSON (2,409,702)*
WITH -------------------------------------
9. SOLE DISPOSITIVE POWER
None
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10. SHARED DISPOSITIVE POWER
None
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,409,702*
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_]
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.9%*
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14. TYPE OF REPORTING PERSON
OO
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* See discussion in Items 4 and 5 of Schedule 13D and Amendment No. 1
thereto.
Item 1. Security and Issuer.
This Amendment No. 1 (the "Amendment") amends the Schedule 13D filed
with the Securities and Exchange Commission on December 16, 2005 (the "Schedule
13D"). Unless otherwise defined herein, all capitalized terms shall have the
meanings ascribed to them in the Schedule 13D.
Item 4. Purpose of Transaction.
Item 4 of Schedule 13D is hereby amended by inserting the following to
and after the last paragraph thereof:
In addition, WS Holdings entered into a Voting Agreement (the "HBK
Voting Agreement"), dated as of January 20, 2006, with HBK Investments L.P., a
Delaware limited partnership ("HBK"), in connection with its possible
$20,000,000 investment in WS Holdings as a minority shareholder following the
Merger.
Pursuant to the HBK Voting Agreement, HBK, which "beneficially owns"
(as such term is defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended) or is entitled to direct the voting of
1,314,400 shares of Common Stock, which represents approximately 9.2% of the
shares of Common Stock deemed to be outstanding pursuant to Rule 13d-3(d)(1)
and approximately 9.2% of the voting power of Dave & Buster's, has agreed to
vote (or cause to be voted) its shares of Common Stock (i) in favor of the
approval of the Merger Agreement and (ii) except with the written consent of WS
Holdings, against any alternative proposal of any other person providing for
(x) the acquisition of Dave & Buster's by merger or other business combination,
(y) an acquisition of 15% or more of the assets of Dave & Buster's and its
subsidiaries, taken as a whole or (z) an acquisition of 15% or more of the
outstanding Common Stock.
Furthermore, HBK has agreed to not make, or in any manner participate
in, directly or indirectly, a "solicitation" (as such term is used in the rules
of the Securities and Exchange Commission) of proxies or powers of attorney or
similar rights to vote, or seek to advise or influence any person with respect
to the voting of, any shares of Common Stock intended to facilitate any
Acquisition Proposal (as such term is defined in the Merger Agreement) or to
cause shareholders of the Company not to vote to approve and adopt the Merger
Agreement. Moreover, HBK has agreed that it shall not, without the prior
approval of WS Holdings, (i) acquire, offer or propose to acquire or agree to
acquire the beneficial ownership of any shares of Common Stock; (ii) make any
public announcement with respect to, or submit any proposal for, any merger,
consolidation, sale of substantial assets or other business combination, tender
offer or exchange offer, purchase of assets, dissolution, liquidation,
restructuring, recapitalization or extraordinary transaction involving Dave &
Buster's; (iii) form, join or in any way participate in any group with respect
to any of the Common Stock; (iv) otherwise act, either alone or in concert with
others, to seek control of Dave & Buster's or its board of directors; (v)
deposit any of its shares of Common Stock in any voting trust or subject any of
its shares of Common Stock to any agreement or other arrangement with respect
to the voting of any of its shares of Common Stock, (vi) execute any written
consent as a stockholder with respect to its shares of Common Stock, (vii)
seek, alone or in concert with others (A) to call a meeting of the stockholders
of the Dave & Buster's, (B) representation on the Dave & Buster's board of
directors, or (C) the removal of any member of the Dave & Buster's
board of directors; (viii) take or cause others to take any action inconsistent
with the foregoing, or (ix) disclose any intention, proposal, plan or
arrangement with respect to any of the foregoing.
Pursuant to the HBK Voting Agreement, HBK also agreed not to, directly
or indirectly, and to cause its affiliates not to, (i) sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of (collectively, a "Transfer")
or enter into any agreement, option or other arrangement with respect to, or
consent to a Transfer of, or convert or agree to convert, any or all of the
shares subject to the HBK Voting Agreement to any Person, other than in
accordance with the Merger Agreement, or (ii) grant any proxies (other than the
Dave & Buster's proxy card in connection with the Dave & Buster's Shareholders
Meeting if and to the extent such proxy is consistent with HBK's obligations
under the Voting Agreement), deposit any of the shares subject to the HBK
Voting Agreement into any voting trust or enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, with respect to any of such
shares, other than pursuant to the HBK Voting Agreement.
The HBK Voting Agreement will terminate upon the earliest of (A) the
approval and adoption of the Merger Agreement, (B) the termination of the
Merger Agreement pursuant to Sections 7.1(a) or 7.1(b) thereof, (C) the
termination of the Merger Agreement pursuant to Sections 7.1(d), 7.1(e), or
7.1(f)(i) thereof provided that at no time after the date of the Merger
Agreement and at or before the date of such termination will a proposal with
respect to an Acquisition Proposal have been publicly announced or disclosed
(whether or not conditional) or disclosed to the Board of Directors of Dave &
Buster's or any committee thereof, (D) six months after the termination of the
Merger Agreement pursuant to (i) Sections 7.1(d), 7.1(e) or 7.1(f)(i) thereof
if after the date of the Merger Agreement and at or before the date of such
termination a proposal with respect to an Acquisition Proposal shall have been
publicly announced or disclosed (whether or not conditional) or disclosed to
the Board of Directors of Dave & Buster's or any committee thereof or (ii)
Sections 7.1(c), 7.1(f)(ii), 7.1(g) or 7.1(h) of the Merger Agreement, and (E)
the election of HBK, upon any amendment of the Merger Agreement that materially
adversely affects HBK, without the prior written consent of HBK. Following
termination of the Merger Agreement for any reason, HBK will be permitted to
Transfer its shares to any Person other than a Person that, to HBK's knowledge,
has made an Acquisition Proposal.
The purpose of the HBK Voting Agreement is to facilitate stockholder
approval for WS Holdings and Dave & Buster's to consummate the transactions
contemplated by the Merger Agreement. A copy of the HBK Voting Agreement is
filed as Exhibit 99.4 hereto and is incorporated herein by reference.
The foregoing summary of certain provisions of the HBK Voting
Agreement is not intended to be complete and is qualified in its entirety by
reference to the full text of the HBK Voting Agreement.
Item 5. Interest in Securities of the Issuer.
Item 5 of Schedule 13D is hereby amended by deleting paragraphs
(a)-(b) in their entirety and substituting the following therefor:
(a)-(b) As of the filing date of this Amendment, as a result of the
Voting Agreement and the HBK Voting Agreement, the Reporting Persons may be
deemed to have (i) beneficial ownership (within the meaning of Rule 13d-3 under
the Exchange Act) and (ii) shared power to vote or direct the vote of 2,409,702
shares of Common Stock, which represents approximately 16.9% of the shares of
Common Stock deemed to be outstanding pursuant to Rule 13d-3(d)(1).
The Reporting Persons are not entitled to any rights of a shareholder
of Dave & Buster's. None of the Reporting Persons has (i) sole power to vote or
direct the vote or (ii) sole or shared power to dispose or direct the
disposition of Common Stock. Each of the Reporting Persons expressly disclaims
any beneficial ownership of any of Common Stock under the Voting Agreement and
the HBK Voting Agreement. Other than as set forth above, neither any Reporting
Person nor any subsidiary of any Reporting Person, nor, to knowledge of any
Reporting Person, any of the individuals referred to in Schedule I, has the
sole or shared power to vote or to direct the vote or has the sole or shared
power to dispose or to direct the disposition of any shares of Common Stock.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Item 6 of Schedule 13D is hereby deleted in its entirety and
substituting the following therefor:
Other than the Merger Agreement, the Voting Agreement and the HBK
Voting Agreement, to the knowledge of the Reporting Persons, there are no
contracts, arrangements, understandings or relationships (legal or otherwise)
among the persons named in Item 2 and Schedule I and between any such persons
and any other person with respect to the securities of Dave & Buster's,
including, but not limited to, transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
Item 7. Material to be filed as Exhibits.
99.4. Voting Agreement, dated January 20, 2006, by and between WS
Midway Holdings, Inc., a Delaware corporation, and HBK
Investments L.P., a Delaware limited partnership.
After reasonable inquiry and to the best of each of the undersigned's
knowledge and belief, the undersigned certify that the information set forth in
this statement is true, complete and correct.
Dated: January 24, 2006
WS MIDWAY HOLDINGS, INC.
By: /s/ Greg S. Feldman
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Greg S. Feldman
President
WELLSPRING CAPITAL
MANAGEMENT LLC
By: /s/ Greg S. Feldman
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Greg S. Feldman
Managing Partner
INDEX TO EXHIBITS
Exhibit
Number Document
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99.4. Voting Agreement, dated January 20, 2006, by and between WS
Midway Holdings, Inc., a Delaware corporation, and HBK
Investments L.P., a Delaware limited partnership.
Exhibit 99.4
VOTING AGREEMENT
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VOTING AGREEMENT (this "Agreement") dated as of January 20, 2006, is
by and among WS MIDWAY HOLDINGS, INC., a Delaware corporation ("Holdings"), and
HBK Investments L.P., a Delaware limited partnership ("HBK"). For purposes of
this Agreement, capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Agreement and Plan of Merger, dated
as of December 8, 2005 (the "Merger Agreement"), by and among Holdings, WS
Midway Acquisition Sub, Inc., a Missouri corporation ("Merger Sub"), and Dave &
Buster's, Inc., a Missouri corporation (the "Company").
RECITALS
A. HBK "beneficially owns" (as such term is defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended) and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) one million three hundred fourteen thousand four hundred
(1,314,400) shares of common stock (the "Common Stock"), par value $0.01 per
share, of the Company (such shares of Common Stock, together with all other
shares of capital stock of the Company acquired by HBK or any of its Affiliates
(as such term is defined in Rule 12b-2 promulgated under the Securities
Exchange Act of 1934, as amended) after the date hereof and during the term of
this Agreement, being collectively referred to herein as the "Subject Shares").
B. Holdings, Merger Sub and the Company have entered into the Merger
Agreement providing for the merger of Merger Sub with and into the Company,
with the Company surviving the Merger (the "Merger") upon the terms and subject
to the conditions set forth therein.
C. HBK and its Affiliates wish to invest in Holdings in connection
with the consummation of the Merger, on substantially the terms set forth on
Annex A hereto (the "Co-Invest").
D. As a condition to the Co-Invest, Holdings has required that HBK
enter into this Agreement, and HBK desires to enter into this Agreement to
induce Holdings to permit the Co-Invest.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Representations and Warranties of HBK.
HBK hereby represents and warrants to Holdings as follows:
(a) Authority. HBK has all requisite limited partnership power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by HBK and constitutes a valid and binding obligation of
HBK enforceable in accordance with its terms subject to (i) bankruptcy,
insolvency, moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, and (ii) general
principles of equity (regardless of whether considered in a proceeding at law
or in equity).
(b) No Conflicts. (i) No filing by HBK or any of its Affiliates with
any governmental body or authority, and no authorization, consent or approval
of any other Person is necessary for the execution of this Agreement by HBK and
the consummation by HBK of the transactions contemplated hereby and (ii) none
of the execution and delivery of this Agreement by HBK, the consummation by HBK
of the transactions contemplated hereby or compliance by HBK with any of the
provisions hereof shall (A) result in, or give rise to, a violation or breach
of or a default under (with or without notice or lapse of time, or both) any of
the terms of any contract, trust agreement, loan or credit agreement, note,
bond, mortgage, indenture, lease, permit, understanding, agreement or other
instrument or obligation to which HBK or any of its Affiliates is a party or by
which HBK or any of its Affiliates or any of their respective assets or any of
the Subject Shares may be bound, or (B) violate any applicable order, writ,
injunction, decree, judgment, statute, rule or regulation, except for any of
the foregoing as would not prevent HBK or any of its Affiliates from performing
their obligations under this Agreement.
(c) The Subject Shares. As of the date hereof, HBK is the record or
beneficial owner of one million three hundred fourteen thousand four hundred
(1,314,400) Subject Shares and has the sole power to vote (or cause to be
voted) such Subject Shares. Neither HBK nor any Affiliate of HBK owns or holds
any right to acquire any additional shares of any class of capital stock of the
Company or other securities of the Company or any interest therein or any
voting rights with respect to any securities of the Company. HBK or its
Affiliates have good and valid title to the Subject Shares, free and clear of
any and all pledges, mortgages, liens, charges, proxies, voting agreements,
encumbrances, adverse claims, options, security interests and demands of any
nature or kind whatsoever, other than (i) those created by this Agreement, or
(ii) as would not prevent HBK or its Affiliates from performing their
respective obligations under this Agreement.
(d) Reliance By Holdings. HBK understands and acknowledges that
Holdings is permitting the Co-Invest in reliance upon HBK's execution and
delivery of this Agreement.
(e) Litigation. As of the date hereof, there is no action, proceeding
or investigation pending or threatened against HBK or any of its Affiliates
that questions the validity of this Agreement or any action taken or to be
taken by HBK in connection with this Agreement.
2. Representations and Warranties of Holdings.
Holdings hereby represents and warrants to HBK as follows:
(a) Due Organization, etc. Holdings is duly organized, validly
existing and in good standing under the laws of the State of Delaware. Holdings
has all requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by Holdings and
constitutes a valid and binding obligation of Holdings enforceable in
accordance with its terms subject to (i) bankruptcy, insolvency, moratorium and
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether considered in a proceeding at law or in equity).
(b) Conflicts. (i) No filing by Holdings with any governmental body or
authority, and no authorization, consent or approval of any other Person is
necessary for the execution of this Agreement by Holdings and the consummation
by Holdings of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by Holdings, the consummation by
Holdings of the transactions contemplated hereby or compliance by Holdings with
any of the provisions hereof shall (A) conflict with or result in any breach of
the certificate of incorporation or by-laws of Holdings, (B) result in, or give
rise to, a violation or breach of or a default under (with or without notice or
lapse of time, or both) any of the terms of any contract, loan or credit
agreement, note, bond, mortgage, indenture, lease, permit, understanding,
agreement or other instrument or obligation to which Holdings is a party or by
which Holdings or any of its assets may be bound, or (C) violate any applicable
order, writ, injunction, decree, judgment, statute, rule or regulation, except
for any of the foregoing as would not prevent Holdings from performing its
obligations under this Agreement.
3. Covenants of HBK.
Until the termination of this Agreement in accordance with Section 4,
HBK agrees as follows:
(a) At the Company Shareholders Meeting or at any adjournment,
postponement or continuation thereof or in any other circumstances occurring
prior to the Company Shareholders Meeting upon which a vote or other approval
with respect to the Merger and the Merger Agreement is sought, HBK shall vote
(or cause to be voted) the Subject Shares (and each class thereof) held by HBK
or its Affiliates (i) in favor of the approval of the Merger and the approval
and adoption of the Merger Agreement; and (ii) except with the written consent
of Holdings, against any Acquisition Proposal. Any such vote shall be cast in
accordance with such procedures relating thereto so as to ensure that it is
duly counted for purposes of determining that a quorum is present and for
purposes of recording the results of such vote. HBK agrees not to enter into
any agreement or commitment with any Person the effect of which would be
inconsistent with or violative of the provisions and agreements contained in
this Section 3(a).
(b) HBK agrees not to, directly or indirectly, and shall cause its
Affiliates not to, (i) sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of (collectively, a "Transfer") or enter into any agreement,
option or other arrangement with respect to, or consent to a Transfer of, or
convert or agree to convert, any or all of the Subject Shares to any Person,
other than in accordance with the Merger Agreement, or (ii) grant any proxies
(other than the Company proxy card in connection with the Company Shareholders
Meeting if and to the extent such proxy is consistent with the HBK's
obligations under Section 3(a) hereof), deposit any Subject Shares into any
voting trust or enter into any voting arrangement, whether by proxy, voting
agreement or otherwise, with respect to any of the Subject Shares, other than
pursuant to this Agreement. HBK further agrees not to, and shall cause its
Affiliates not to, commit or agree to take any of the foregoing actions or take
any action that may reasonably be expected to have the effect of preventing,
impeding, interfering with or adversely affecting its ability to perform its
obligations under this Agreement.
(c) HBK shall not, nor shall HBK permit any of its Affiliates to, nor
shall HBK act in concert with or permit any Affiliate to act in concert with
any Person to make, or in any manner participate in, directly or indirectly, a
"solicitation" (as such term is used in the rules of the Securities and
Exchange Commission) of proxies or powers of attorney or similar rights to
vote, or seek to advise or influence any Person with respect to the voting of,
any shares of Common Stock intended to facilitate any Acquisition Proposal or
to cause shareholders of the Company not to vote to approve and adopt the
Merger Agreement. HBK shall not, and shall cause its Affiliates not to, and
shall direct any investment banker, attorney, agent or other adviser or
representative of HBK not to, directly or indirectly, through any officer,
director, agent or otherwise, enter into, solicit, initiate, conduct or
continue any discussions or negotiations with, or knowingly encourage or
respond to any inquiries or proposals by, or provide any information to, any
Person, other than Holdings, relating to any Acquisition Proposal. HBK hereby
represents that, as of the date hereof, it is not engaged in discussions or
negotiations with any party with respect to any Acquisition Proposal.
(d) HBK hereby agrees that it shall not, and that it shall cause each
of its Affiliates not to, without the prior approval of Holdings, directly or
indirectly, (i) acquire, offer or propose to acquire or agree to acquire
(whether by purchase, tender or exchange offer, through an acquisition of
control of another Person (including by way of merger or consolidation), by
joining a partnership, syndicate or other group, or otherwise), the beneficial
ownership of any shares of Common Stock of the Company or any equity securities
of its Subsidiaries (or any warrants, options or other rights to purchase or
acquire, or any securities convertible into, or exchangeable for, any Common
Stock of the Company or any equity securities of its Subsidiaries); provided,
however, that the foregoing restrictions shall not apply to any acquisition or
proposed acquisition (each, an "Acquisition") of beneficial ownership of any
additional shares of Common Stock of the Company which is by way of stock
dividends, stock reclassifications or other distributions or offerings made
available and, if applicable, exercised on a pro rata basis, to holders of
Common Stock of the Company generally; (ii) make any public announcement with
respect to, or submit any proposal for, any merger, consolidation, sale of
substantial assets or other business combination, tender offer or exchange
offer, purchase of assets, dissolution, liquidation, restructuring,
recapitalization or extraordinary transaction involving the Company or any of
its Subsidiaries; (iii) form, join or in any way participate in any group
(other than with respect to its Affiliates) with respect to any of the Common
Stock of the Company; (iv) otherwise act, either alone or in concert with
others, to seek control of the Company, the Board of Directors, the management
or policies of the Company or any of its Subsidiaries; (v) deposit any of the
Subject Shares in any voting trust or subject any such Subject Shares to any
agreement or other arrangement with respect to the voting of any such Subject
Shares, (vi) execute any written consent as a stockholder with respect to the
Subject Shares, (vii) seek, alone or in concert with others (A) to call a
meeting of the stockholders of the Company, (B) representation on the Board of
Directors, or (C) the removal of any member of the Board of Directors; (viii)
take or cause others to take any action inconsistent with the foregoing, (ix)
disclose any intention, proposal, plan or arrangement with respect to any of
the foregoing; or (x) make any demand, request or proposal to amend, waive or
terminate any provision of this Section 3(e).
4. Termination.
This Agreement shall terminate upon the earliest of (A) the approval
and adoption of the Merger Agreement, (B) the termination of the Merger
Agreement pursuant to Sections 7.1(a) or 7.1(b), (C) the termination of the
Merger Agreement pursuant to Sections 7.1(d), 7.1(e), or 7.1(f)(i) provided
that at no time after the date of the Merger Agreement and at or before the
date of such termination shall a proposal with respect to an Acquisition
Proposal have been publicly announced or disclosed (whether or not conditional)
or disclosed to the Board of Directors of the Company or any committee thereof,
(D) six months after the termination of the Merger Agreement pursuant to (i)
Sections 7.1(d), 7.1(e) or 7.1(f)(i) if after the date of the Merger Agreement
and at or before the date of such termination a proposal with respect to an
Acquisition Proposal shall have been publicly announced or disclosed (whether
or not conditional) or disclosed to the Board of Directors of the Company or
any committee thereof or (ii) Sections 7.1(c), 7.1(f)(ii), 7.1(g) or 7.1(h),
and (E) the election of HBK, upon any amendment of the Merger Agreement that
materially adversely affects HBK, without the prior written consent of HBK;
provided, however, that notwithstanding the foregoing, in the event of the
termination of the Merger Agreement for any reason whatsoever, HBK shall,
immediately following such termination, be permitted to Transfer any or all of
the Subject Shares to any Person, other than a Person of which HBK is aware,
that has made an Acquisition Proposal.
5. Appraisal Rights.
To the extent permitted by applicable law, HBK hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have under
applicable law.
6. Publication.
HBK hereby authorizes Holdings and the Company to publish and disclose
in the Proxy Statement/Prospectus (including any and all documents and
schedules filed with the Securities and Exchange Commission relating thereto)
its identity and ownership of Subject Shares and the nature of its commitments,
arrangements and understandings pursuant to this Agreement; provided, that HBK
shall have the opportunity to review such disclosure and provide comments
thereon prior to the making of such publication and disclosure.
7. Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Missouri applicable to contracts executed in and to be
performed entirely within that State.
8. Waiver of Jury Trial.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND
THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH SUCH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH
SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.
9. Specific Performance.
The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in any court of the United States located in the State of
Missouri or in Missouri state court, this being in addition to any other remedy
to which they are entitled at law or in equity.
10. Amendment, Waivers, Etc.
This Agreement may be amended by Holdings and HBK at any time before
or after adoption of the Merger Agreement by the shareholders of the Company;
provided, however, that after such adoption, no amendment shall be made that by
law or in accordance with the rules of any relevant stock exchange or automated
inter-dealer quotation system requires further approval by such shareholders
without such further approval. This Agreement may not be amended except by an
instrument in writing signed by Holdings and HBK. At any time prior to the
Effective Time, Holdings and HBK may, to the extent legally allowed, (i) extend
the time for the performance of any of the obligations or acts of the other
party; (ii) waive any inaccuracies in the representations and warranties of the
other party contained herein or in any document delivered pursuant to this
Agreement; and (iii) waive compliance with any of the agreements or conditions
of the other party contained herein; provided, however, that no failure or
delay by Holdings or HBK in exercising any right hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right hereunder.
Any agreement on the part of Holdings or HBK to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf
of such party.
11. Assignment; No Third Party Beneficiaries.
Neither this Agreement nor any of the rights, benefits or obligations
hereunder may be assigned by any of the parties hereto (whether by operation of
law or otherwise) without the prior written consent of all of the other
parties, except that Holdings may assign its rights hereunder to a controlled
Affiliate of Wellspring. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any Person
(other than Holdings, Wellspring and HBK and their respective successors and
permitted assigns) any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement, and no Person (other
than as so specified) shall be deemed a third party beneficiary under or by
reason of this Agreement.
12. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile and (ii) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
if to Holdings, to:
c/o Wellspring Capital Management LLC
Lever House
390 Park Avenue
New York, New York 10022-4608
Attention: Greg S. Feldman, Managing Partner
Telephone: (212) 318-9898
Facsimile: (212) 318-9810
if to HBK, to:
HBK Investments L.P.
300 Crescent Court
Suite 700
Dallas, Texas 75201
Attention: Legal Department
Telephone: (214) 758-6107
Facsimile: 214-758-1207
13. Non-Survival.
The representations and warranties made herein shall not survive the
termination of the Agreement.
14. Severability.
If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner adverse to any party. Upon
such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that transactions
contemplated hereby are fulfilled to the maximum extent possible.
15. Integration.
This Agreement (together with the Merger Agreement to the extent
referenced herein), constitutes the full and entire understanding and agreement
of the parties with respect to the subject matter hereof and thereof and
supersedes any and all prior understandings or agreements relating to the
subject matter hereof and thereof.
16. Mutual Drafting.
Each party hereto has participated in the drafting of this Agreement,
which each party acknowledges is the result of extensive negotiations between
the parties.
17. Section Headings.
The section headings of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement.
18. Counterparts.
This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, and of which when executed
shall be deemed to be an original but all which shall constitute one and due
some agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and date first above written.
WS MIDWAY HOLDINGS, INC.
By: /s/ Jason B. Fortin
--------------------------------
Name: Jason B. Fortin
Title: Authorized Signatory
HBK INVESTMENTS L.P.
By: /s/ Laurence Lebowitz
--------------------------------
Name: Laurence Lebowitz
Title: Authorized Signatory