Agreement and Waiver Regarding Series B Warrant Anti-Dilution Rights – Midway Games Inc. and Investors

Summary

This agreement, dated April 2, 2004, is between Midway Games Inc. and several investors who hold Series B Warrants to purchase the company's common stock. The investors agree to permanently waive their anti-dilution rights under the warrants, but only for situations where Midway issues securities as payment for mergers, consolidations, or acquisitions—not for raising capital. The waiver is irrevocable and applies solely to these specified transactions.

EX-10.2 4 a2133333zex-10_2.htm EXHIBIT 10.2
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Exhibit 10.2

AGREEMENT AND WAIVER

THIS AGREEMENT AND WAIVER is made, entered into and effective as of the 2^nd day of April, 2004, by and among Midway Games Inc. (the "Corporation"), Portside Growth and Opportunity Fund (f/k/a Peconic Fund, Ltd.), Smithfield Fiduciary LLC and Neil D. Nicastro (collectively, the "Investors") each of whom own warrants (the "Series B Warrants") to purchase shares of the Corporation's common stock, par value $0.01 per share (the "Common Stock"). The Series B Warrants 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.

W I T N E S S E T H

WHEREAS, Section 8(a) of the Series B Warrants grants the Investors, under certain circumstances, anti-dilution rights (collectively, the "Anti-Dilution Rights"); and

WHEREAS, the Investors desire to waive irrevocably the Anti-Dilution Rights set forth in the Series B Warrants with respect to the issuance of securities as consideration for mergers or consolidations or the acquisition of businesses, products, licenses or other assets of other Persons, in each case not for capital raising purposes.

NOW, THEREFORE, in consideration of the mutual covenants and premises contained herein, the parties hereby agree as follows:

Waiver. Each Investor agrees to waive irrevocably the Anti-Dilution Rights set forth in Section 8(a) of the Series B Warrant solely with respect to the Corporation's issuance of securities as consideration for mergers or consolidations or the acquisition of businesses, products, licenses or other assets of other Persons, in each case not for capital raising purposes.

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.

* * * * *

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/ DAVID F. ZUCKER
		Name:	David F. Zucker
		Title:	President and Chief Executive Officer
		PORTSIDE GROWTH AND OPPORTUNITY FUND (f/k/a PECONIC FUND, LTD.) By: Ramius Capital Group, LLC Its: Investment Advisor
		By:	/s/ JEFFREY SMITH
		Name:	Jeffrey Smith
		Title:	Authorized Signatory
		SMITHFIELD FIDUCIARY LLC
		By:	/s/ SCOTT WALLACE
		Name:	Scott Wallace
		Title:	Authorized Signatory
			/s/ NEIL D. NICASTRO Neil D. Nicastro

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