EXHIBIT 9.1
DRAFT 11/11/96
IRREVOCABLE VOTING TRUST AGREEMENT
THIS IRREVOCABLE VOTING TRUST AGREEMENT (this "Trust Agreement"), is
entered into on ____ __, 1996, by and between First Data Corporation, a Delaware
corporation ("FDC"), Integrated Payment Systems Inc., a Delaware corporation and
a wholly-owned subsidiary of FDC ("IPS"), and Wachovia Bank of North Carolina,
N.A., a National Banking Association (the "Trustee"). FDC, IPS and each
affiliate of FDC are referred to herein collectively as the "FDC Group" and each
individually as a "FDC Group Member."
WITNESSETH:
WHEREAS, FDC, through IPS, engages in, among other things, the
business of transferring the right to money using computer or telephone lines
from one person through the location of an agent to a different person through
an agent, which is marketed under the name MoneyGram (the "Consumer Money Wire
Transfer Services" or the "Business");
WHEREAS, pursuant to a consent decree dated January 19, 1996 (the
"Consent Decree") between FDC and the Federal Trade Commission (the "FTC"), FDC
is obligated to divest certain assets relating to either the Business or the
Consumer Money Wire Transfer Services owned and operated by Western Union
Financial Services, Inc., a subsidiary of FDC, by January 23, 1997;
WHEREAS, FDC has decided to comply with the Consent Decree by
divesting itself of the Business (the "Divestiture");
WHEREAS, FDC and IPS have entered into a contribution agreement with
MoneyGram Payment Systems, Inc., a Delaware corporation and a wholly-owned
subsidiary of IPS ("MG"),
dated as of _______, 1996 (the "Contribution Agreement"), whereby IPS
contributed to MG the Contributed Assets (as defined in the Contribution
Agreement) in exchange for shares (the "IPS Shares") of common stock, par value
$.01 per share, of MG ("MG Common Stock");
WHEREAS, FDC and IPS will accomplish the Divestiture through the sale
of the IPS Shares via an initial public offering (the "IPO") pursuant to an
underwriting agreement dated __________, 1996 (the "Underwriting Agreement")
among IPS, MG and the underwriters named therein (collectively, the
"Underwriters"), whereby the Underwriters (i) have made a firm commitment to
purchase approximately 87% of the IPS Shares to be sold in the IPO and (ii) have
an option (the "Overallotment Option") exercisable within 30 days of the date of
the Underwriting Agreement to purchase any or all of the remaining IPS Shares;
WHEREAS, the proposed Divestiture is subject to the prior approval of
the FTC, which has reviewed this Trust Agreement;
WHEREAS, in order to comply with the Consent Decree and obtain the
approval of the FTC to the Divestiture pursuant to the IPO, FDC and IPS have
agreed that, in the event that the Overallotment Option is not exercised in full
during the 30-day option period, IPS shall deposit any and all IPS Shares then
owned by IPS into an irrevocable voting trust (the "Trust") with the Trustee
pursuant to this Trust Agreement for disposition in accordance with the terms
and conditions hereof; and
WHEREAS, FDC and IPS desire to enter into this Trust Agreement to (i)
facilitate the above described transactions and (ii) to obtain FTC approval of
the Divestiture through the IPO, including the subsequent disposition or
dispositions of any IPS Shares by the Trustee under this Trust Agreement.
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NOW, THEREFORE, in consideration of the foregoing, and of the mutual
promises, covenants and agreement hereinafter set forth, the parties hereto
agree as follows:
1. APPOINTMENT OF TRUSTEE. FDC and IPS hereby jointly and irrevocably
appoint Wachovia Bank of North Carolina, N.A. as Trustee hereunder, and Wachovia
Bank of North Carolina, N.A. hereby accepts said appointment and agrees to act
as Trustee under this Trust Agreement as provided herein.
2. CREATION AND PURPOSE OF IRREVOCABLE VOTING TRUST. Subject to the
terms and conditions hereof, as of the date 31 days after the execution of the
Underwriting Agreement (the "Effective Date") a voting trust in respect of all
the MG Common Stock held by IPS as of the Effective Date (the "Remaining Stock")
will be created and established in accordance with Section 218 of the Delaware
General Corporation Law for the purpose of causing all of the Remaining Stock to
be held pending sale thereof at the earliest practicable date, as provided for
herein. A copy of this Trust Agreement and any amendment hereto shall be filed
at the registered office of MG in the State of Delaware and shall be made
available for examination by any stockholder of MG or any beneficiary of the
Trust at any reasonable time for any reasonable purpose.
3. IRREVOCABILITY. After the deposit of the Remaining Stock with the
Trustee as provided herein, this Trust Agreement, the Trust and the nomination
of the Trustee shall be irrevocable by FDC and IPS and shall terminate only in
accordance with the provisions of Section 11.
4. DEPOSIT AND TRANSFER OF REMAINING STOCK; VOTING TRUST
CERTIFICATES. (a) On the Effective Date, IPS shall deliver a certificate or
certificates representing all of the outstanding Remaining Stock to the Trustee,
duly endorsed for transfer or accompanied by duly executed instruments of
transfer. Each certificate delivered to the Trustee pursuant to this Section
4(a)
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shall be canceled and new certificates evidencing the Remaining Stock shall be
issued and registered in the name of the Trustee. Upon the issuance and
registration of such certificates, the Trustee shall deliver Voting Trust
certificates substantially in the form attached hereto as Exhibit A with blanks
therein appropriately completed (the "Certificates") to IPS (IPS's status upon
its delivery of the Remaining Stock to the Trustee and the Trustee's delivery of
the Certificates to IPS shall be referred to herein as "Beneficiary").
(b) All shares of Remaining Stock, while deposited with the Trustee
pursuant to this Trust Agreement, are herein called the "Deposited Stock."
(c) Each Certificate representing Deposited Stock shall bear a legend
to the effect that it is subject to this Trust Agreement, and that fact also
shall be noted in the stock transfer records of MG.
5. RETENTION OF DEPOSITED STOCK BY TRUSTEE. The Trustee shall retain
possession of the Deposited Stock only in accordance with, and subject to the
terms and conditions set forth in, this Trust Agreement.
6. MAINTENANCE OF RECORDS; REPLACEMENT OF VOTING TRUST CERTIFICATES.
(a) The Trustee shall keep a record relating to the Certificates, indicating
the name and address of the Beneficiary, the number of shares of Deposited Stock
represented thereby, and the date the Beneficiary originally acquired the
Remaining Stock, and the Trustee shall deposit a copy of such record with MG at
its registered office in the State of Delaware. The copy of such record may be
examined by any stockholder of MG or any beneficiary of the Trust, either in
person or by agent or attorney, at any reasonable time for any reasonable
purpose. The Trustee also shall maintain such other records and books as are
necessary or appropriate to carry out the terms and provisions of this Trust
Agreement.
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(b) In case any Certificate shall become mutilated, lost, stolen or
destroyed, the Trustee, under such conditions with respect to indemnity and
otherwise as in the Trustee's discretion may be prescribed, may provide for the
issuance of a new Certificate in lieu of such lost, stolen or destroyed
Certificate or in exchange for such mutilated Certificate.
7. RESTRICTION ON TRANSFER. During the term of this Trust
Agreement, the Trustee shall not sell, transfer, assign, pledge, or otherwise
encumber or create any lien on any Deposited Stock, except in accordance with
Sections 8 or 9.
8. VOTING AND OTHER ACTIONS BY TRUSTEE. (a) During the term, and
subject to the provisions, of this Trust Agreement and for so long as the
Trustee shall hold the Deposited Stock pursuant to this Trust Agreement, the
Trustee shall possess and shall be entitled to exercise all rights and powers of
absolute ownership of the Deposited Stock, including, but not limited to, the
right to take part in and consent to any corporate or stockholders' action of
any kind whatsoever; the right to receive dividends and distributions on all
Deposited Stock for the account of the Beneficiary; the right to receive and
waive any notices to stockholders as required by law or the certificate of
incorporation or by-laws of MG; the right to dispose of the Deposited Stock in
accordance with Section 9 and Section 11; and the right to vote the Deposited
Stock on all matters upon which holders of Deposited Stock are entitled to vote,
provided, however, that the Trustee shall vote all shares of Deposited Stock
with respect to all matters, including, without limitation, the election or
removal of directors, voted on by the stockholders of MG (whether at a regular
or special meeting or pursuant to a unanimous written consent) in the same
proportion as all shares of MG Common Stock (other than Deposited Stock) are
voted with respect to such matters. In exercising its voting rights in
accordance with this Section 8(a), the Trustee shall take such actions at all
annual, special or other meetings of stockholders of MG or in connection with
any action by consent in lieu of a meeting.
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(b) No other person shall have any voting right in respect of any
Deposited Stock so long as this Trust Agreement is in effect. The Trustee shall
have no beneficial interest in the Deposited Stock.
(c) During the term of this Trust Agreement, neither the Beneficiary
nor any other FDC Group Member shall attempt to exercise any control over the
decisions or actions of the Trustee; provided, however, nothing herein shall
prevent the Trustee from otherwise utilizing the Beneficiary or any other FDC
Group Member, or any of their respective officers or employees, as consultants
with regard to the disposition of the Deposited Stock, the Trustee having no
obligation to accept or follow any recommendations from such consultants; and
provided further, however, nothing herein shall prevent the Trustee from
providing to the Beneficiary such reports, financial data or other information
heretofore customarily provided by MG to its stockholders.
9. DISPOSITION OF THE DEPOSITED STOCK. (a) Immediately upon receipt
of the Deposited Stock, the Trustee shall retain Xxxxxx Xxxxxxx & Co.
Incorporated ("Xxxxxx Xxxxxxx") or, if Xxxxxx Xxxxxxx declines such
representation, an investment banking firm of national reputation (the
"Investment Banker") to advise Trustee as to the appropriate method by which to
dispose of the Deposited Stock in accordance with the terms of this Trust
Agreement.
(b) The Investment Banker shall recommend a disposition whereby the
Trustee will sell all of the Deposited Stock at the earliest practicable date
(but in no event sooner than December 31, 1996 without the prior written
approval of Xxxxxx Xxxxxxx in accordance with the Underwriting Agreement) to
one or more purchasers (other than any FDC Group Member) in a manner and for
such price as the Investment Banker shall deem reasonable and consistent with
maximizing the price to be received by IPS in consideration therefor. The
Trustee shall sell the Deposited Stock only when recommended and in the manner
recommended by the Investment Banker. The Trustee shall have no discretion with
respect to the disposition in respect of the Deposited Stock.
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(c) The Trustee shall have all right, power and authority to dispose
of all of the Deposited Stock in accordance with the Investment Banker's
recommendation and shall cause all reasonably necessary actions to be taken to
effect the sale of all Deposited Stock (in one or more transactions) in a manner
consistent with such recommendation.
(d) The Investment Banker may recommend a sale of, and the Trustee
may sell, the Deposited Stock by any method, including, but not limited to, a
secondary public offering of all or some of the Deposited Stock (i) in one or
more publicly registered transactions and/or (ii) in one or more privately
negotiated transactions for the sale of either publicly registered or
unregistered Deposited Stock.
(e) If either the Beneficiary or the Trustee determines, or if the
Investment Banker recommends, that in connection with the disposition of the
Deposited Stock it may be beneficial or advisable to register or qualify any or
all of the Deposited Stock under the Securities Act of 1933, as amended, or any
state securities or Blue Sky laws, then each of the Beneficiary and the Trustee
shall take any and all action necessary or advisable, including any and all
actions pursuant to the Registration Rights Agreement dated ______, 1996 between
IPS and MG, to register and qualify or cause MG to register and qualify such
Deposited Stock.
(f) The Trustee shall comply with all applicable laws, including,
without limitation, all federal and state securities laws, in connection with
any sale of the Deposited Stock.
(g) Beneficiary shall cooperate with the Trustee, take such other
actions and execute such documents or instruments as may be reasonably requested
by the Trustee from time to time, and provide any information and such
representations and warranties regarding the Deposited Stock in order to
facilitate and effectuate the disposition of the Deposited Stock in accordance
with the terms of this Trust Agreement.
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(h) The Trustee promptly shall inform the Beneficiary and the FTC of
any disposition of Deposited Stock in accordance with this Section 9.
10. TRANSFERABILITY OF TRUST CERTIFICATES. All Certificates shall be
transferable on the books of the Trustee upon the surrender by the registered
holder thereof, properly assigned, in accordance with rules from time to time
established for this purpose by the Trustee. Use of the transfer form included
in Exhibit A hereto shall be deemed acceptable for such purpose by the Trustee.
Until a Certificate is so transferred, the Trustee may treat the registered
holder as owner for all purposes. Each transferee of a Certificate issued
hereunder shall, by transferee's acceptance thereof, assent to and become a
party to this Trust Agreement and shall assume all attendant rights and
obligations hereunder. Notwithstanding the foregoing, only a FDC Group Member
shall be permitted to be a transferee or a registered holder of Certificates in
accordance herewith.
11. TERMINATION OF VOTING TRUST AGREEMENT. (a) This Trust Agreement
shall terminate upon the earlier of (i) the disposition of all of the Deposited
Stock in accordance with Section 9 or (ii) January 23, 1997, without notice by
or to, or action on the part of, the Trustee or the Beneficiary.
Notwithstanding the preceding sentence, the Beneficiary may amend the date in
clause (ii) of the preceding sentence by providing written notice to the Trustee
providing (x) the new, amended date (which shall not exceed three months from
the expiration date then in effect) and (y) a representation that the FTC has
approved such amended date. In the event of such extension, prior to the
expiration as hereinabove provided, as originally fixed, or as theretofore
extended, as the case may be, the Trustee shall file in the registered offices
of MG in the State of Delaware a copy of an agreement extending the expiration
date of this Trust Agreement and thereupon the duration of this Trust Agreement
shall be extended for the period fixed by such extension agreement.
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(b) In the event that any Deposited Stock remains in the Trust on the
termination of this Trust Agreement, as it may be extended, then the Trustee
shall deliver certificates representing all of such remaining Deposited Stock,
duly endorsed for transfer or accompanied by duly executed instruments of
transfer, to or among one or more of the charitable organizations listed on
Schedule A, as designated by IPS in writing on or before the termination of this
Trust Agreement. The Beneficiary shall promptly notify the FTC of any
disposition of Deposited Stock in accordance with this Section 11(b).
12. DIVIDENDS; DISTRIBUTIONS ON SALE OF DEPOSITED STOCK AND
DISSOLUTION. (a) The Beneficiary shall be entitled to receive from time to
time payments equal to the amount of cash dividends, if any, collected or
received by the Trustee with respect to the shares of Deposited Stock
represented by such Certificate. Such payments shall be made by the Trustee as
soon as practicable after the receipt of the dividends. In lieu of receiving
cash dividends and paying them to the Beneficiary, the Trustee may instruct MG
in writing to pay the cash dividends directly to the Beneficiary. In the event
any such instruction is given to MG, all liability of the Trustee with regard to
the payment of such dividends shall cease, unless and until such instruction is
revoked. The Trustee may at any time revoke such instruction by written notice
to MG and direct it to make subsequent payments to the Trustee.
(b) In the event that the Trustee receives any additional shares of
capital stock of MG through a dividend or other distribution with respect to any
Deposited Stock, the Trustee shall hold such shares subject to this Trust
Agreement for the benefit of the Beneficiary, and the shares shall become
subject to all of the terms and conditions of this Trust Agreement to the same
extent as if they were originally deposited as shares of Deposited Stock
hereunder. The Trustee shall issue Certificates in respect of such shares to
the Beneficiary.
(c) In the event of the sale of any or all of the Deposited Stock
pursuant to this Trust Agreement, the Trustee shall receive the cash,
securities, property or other consideration paid in
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exchange for such shares of Deposited Stock (the "Proceeds"), and promptly shall
distribute such Proceeds to the Beneficiary. The Trustee, in its reasonable
discretion, may require the surrender to it of Certificates before paying to
the holder such Proceeds and, if any Deposited Stock remains subject to the
Trust, reissue to such holder a new Certificate reflecting such remaining
Deposited Stock.
(d) In the event of the termination of this Trust Agreement pursuant
to Section 11, the Trustee shall receive any Proceeds which are distributed or
distributable in respect of the Deposited Stock, and, upon the receipt of all
Certificates by the holders thereof, promptly shall distribute the Proceeds to
the Beneficiary.
13. TRUSTEE TO MAINTAIN INDEPENDENCE. During the effective period of
this Trust, neither the Trustee nor any affiliate of the Trustee may have (i)
any officers or directors in common with any FDC Group Member, or (ii) any
material business arrangements or dealings, financial or otherwise, outside of
the customary or ordinary course of business, with any FDC Group Member.
Investment by the Trustee in the stock or securities of any FDC Group Member,
short of obtaining a controlling interest, will not be considered a proscribed
business arrangement or dealing; provided, however, that in no event shall any
such investment by the Trustee in voting securities of any FDC Group Member
exceed five percent of the outstanding voting securities of such entity and in
no event shall the Trustee hold a proportion of such voting securities so
substantial as to permit the Trustee in any way to control or direct the affairs
of any FDC Group Member.
14. COMPENSATION OF TRUSTEE. The Trustee shall be entitled to
receive from IPS, as compensation for all services rendered hereunder as
Trustee, an amount equal to $500.00 per month for each and every month or part
thereof during the term that this Trust Agreement is in effect.
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15. PAYMENT OF TRUSTEE'S EXPENSES. The Trustee is expressly
authorized to incur and pay all reasonable charges and other expenses, including
all reasonable fees and expenses of counsel and the Investment Banker, deemed
necessary and proper in the performance of the Trustee's duties under this
Trust Agreement, and the Beneficiary agrees to reimburse the Trustee for such
charges and expenses.
16. DELEGATION OF TRUSTEE'S DUTIES. The Trustee may appoint an agent
or agents at any time or from time to time and may delegate to such agent or
agents the performance of any administrative duty of the Trustee hereunder.
17. STANDARD OF CARE; INDEMNITY. The duties and responsibilities of
the Trustee shall be limited to those expressly set forth in this Trust
Agreement. The Trustee shall not be answerable for the default or misconduct of
the Investment Banker or any agent or attorney appointed by the Trustee in
pursuance hereof; provided, however, that, in the case of such agent or
attorney, Trustee selected such agent or attorney in good faith exercising
reasonable care. The Trustee shall be free from liability in action on any
paper, document or signature reasonably believed by the Trustee to be genuine
and to have been signed by the proper party. The Trustee shall not be liable
for any error of judgment nor for any act done or omitted, nor any mistake of
fact, nor for anything which the Trustee may do or refrain from doing in good
faith, except that (i) the Trustee shall be liable for the Trustee's own
intentional wrongful actions or gross negligence and (ii) the Trustee's
obligations under Sections 9(e) and 9(f). The Trustee may consult with counsel
reasonably acceptable to IPS and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, omitted or
suffered by the Trustee in good faith and in accordance with such opinion. Each
of FDC and IPS, jointly and severally, agrees to at all times protect, indemnify
and save harmless the Trustee from any liability, loss or expense of any kind or
character whatsoever incurred by the Trustee in connection with this Trust or
the performance of the Trustee's duties and obligations under this Trust
Agreement, except those resulting from or arising out of the gross negligence or
willful
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misconduct of the Trustee, and will assume full responsibility for, and pay all
reasonable cost and expense of, any suit or litigation of any character,
including any proceedings before the FTC, with respect to the Deposited Stock,
this Trust Agreement or the performance of the Trustee's duties and obligations
under this Trust Agreement, and if the Trustee shall be made a party thereto,
IPS and FDC shall pay all reasonable costs and expenses, including reasonable
counsel fees, to which the Trustee may be subject by reason thereof. The
indemnification provided by this Section 17 shall survive termination of this
Trust Agreement.
18. QUALIFICATION OF TRUSTEE. Upon receipt of the Deposited Stock
pursuant to this Trust Agreement, neither the initial Trustee, nor any successor
trustee designated pursuant to Section 19, may be an officer, director, employee
or attributable stockholder of IPS or any other FDC Group Member, or have any
business or familial relationships with FDC; provided, however, that any such
Trustee may thereafter become an officer, director or employee of MG.
19. TERMINATION, RESIGNATION AND REPLACEMENT OF TRUSTEE. (a) The
Trustee shall serve for the duration of this Trust Agreement, or until the
Trustee's earlier resignation, incapacity to act or death. No interest in any
of the Deposited Stock held by any deceased or former Trustee nor any of the
rights or duties of any deceased or former Trustee may be transferred by will,
devise, succession or in any manner except as provided in this Trust Agreement.
The heirs, administrators and executors of such deceased Trustee, however, shall
have the right and duty to convey any Deposited Stock held by such Trustee to
one or more successor trustees.
(b) The Trustee, or any trustee hereafter appointed, may resign at any
time by giving 60 days' written notice of resignation to IPS and the FTC,
provided, however, the Trustee agrees to continue the Trustee's duties until
such time as the Deposited Stock has been transferred to a successor trustee
appointed pursuant to this Section 19.
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(c) Upon receiving such notice of resignation or upon being notified
of the death or incapacity of the Trustee: (i) IPS shall select a successor
trustee, subject to the consent of the FTC, which consent shall not be
unreasonably withheld; (ii) the successor trustee shall have experience and
expertise in acquisitions and divestitures and (iii) if the FTC has not opposed,
in writing, including the reasons for opposing, the selection of any proposed
successor trustee, within 10 days after notice by the Trustee or IPS to the FTC
of the identity of any proposed successor trustee, the FTC shall be deemed to
have consented to the selection of the proposed successor trustee.
(d) If no successor trustee shall have been appointed and shall have
accepted appointment within 45 days after a notice of resignation pursuant to
Section 19(b), the resigning Trustee may petition any authority or court of
competent jurisdiction for the appointment of a successor trustee.
(e) Upon written assumption by the successor trustee of the Trustee's
powers and duties hereunder, the Trustee shall deliver a copy of the assumption
to IPS and shall notify the FTC and all registered holders of Certificates of
such assumption, whereupon the Trustee shall be discharged of its powers and
duties hereunder and the successor trustee shall become vested therewith.
(f) Any corporation into which any trustee hereunder may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which any trustee hereunder may be a party, shall be the
successor trustee under this Trust Agreement, without the execution or filing of
any paper or any further act on the part of the parties hereto, anything to the
contrary notwithstanding, provided that such successor trustee meets the
qualifications specified in Section 18.
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20. DISCLOSURE OF INFORMATION. To the extent requested to do so by
IPS or by any registered holder of a Certificate, the Trustee promptly shall
furnish to the party making such request full information with respect to (a)
all property theretofore delivered to it as Trustee under this Trust Agreement,
(b) all property then held by it as Trustee under this Trust Agreement, and (c)
all action theretofore taken by it as Trustee under this Trust Agreement.
21. AMENDMENTS. From time to time this Trust Agreement may be
modified or amended by agreement executed by the Trustee and FDC and IPS (with
the approval of the FTC) and all registered holders of Certificates. Each
amendment to the Trust Agreement shall be filed at the registered office of MG
in the State of Delaware.
22. NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, or sent by cable, telegram, telex or
telefax, or by first-class mail (postage prepaid) to the respective parties as
follows:
If to FDC: First Data Corporation
0000 Xxxxx 000xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to IPS: Integrated Payment Systems Inc.
0000 X. Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to Trustee: Wachovia Bank of North Carolina, N.A.
000 X. Xxxx Xxxxxx
Xxxxxxx Xxxxx, X.X. 00000
Attention: Xxxxxx Xxxxxx
If to FTC: Bureau of Competition-Compliance
Federal Trade Commission
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000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxx
or to such other address as any of them by written notice to the other parties
may designate from time to time. Each notice or other communication which shall
be personally delivered, mailed, telecopied or telexed in the manner described
above, or which shall be delivered to a telegraph company, shall be deemed
sufficiently received for all purposes at such time as it is delivered to the
addressee (with any return receipt, delivery receipt or, with respect to a
telecopy or telex, answer back being deemed conclusive evidence of such
delivery) or at such time as delivery is refused by the addressee upon
presentation.
23. ASSIGNABILITY. Except as expressly provided for herein, this
Trust Agreement shall not be assignable by any of the parties hereto, except in
the event of the resignation, incapacity to act or death of any Trustee and the
appointment of a successor trustee in accordance with Section 19.
24. PARTIAL INVALIDITY. If any part of any provision of this Trust
Agreement or any other agreement, document or writing given pursuant to or in
connection with this Trust Agreement shall be invalid or unenforceable under
applicable law, said part shall be ineffective to the extent of such invalidity
only, without in any way affecting the remaining parts of said provisions or the
remaining provisions of said agreement.
25. SUCCESSORS AND ASSIGNS. This Trust Agreement shall inure to the
benefit of and shall be binding upon the parties hereto and their successors and
assigns as provided herein.
26. HEADINGS. Section headings contained in this Trust Agreement are
inserted for convenience of reference only, shall not be deemed to be a part of
this Trust Agreement for any
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purpose, and shall not in any way define or affect the meaning, construction or
scope of any of the provisions hereof.
27. GOVERNING LAW. This Trust Agreement and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to the principles of
conflict of laws thereof.
28. EXECUTION IN COUNTERPARTS. This Trust Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
and all of which together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, First Data Corporation, Integrated Payment Systems
Inc. and Wachovia Bank of North Carolina, N.A. have caused this Irrevocable
Voting Trust Agreement to be executed by their respective duly authorized
officers on the day and year first above written.
FIRST DATA CORPORATION
By: ________________________________
INTEGRATED PAYMENT SYSTEMS INC.
By: ________________________________
WACHOVIA BANK OF NORTH
CAROLINA, N.A.
By: ________________________________
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EXHIBIT A
---------
No. 1 ____ Shares
VOTING TRUST CERTIFICATE
for
COMMON STOCK
$.01 PAR VALUE PER SHARE
of
MONEYGRAM PAYMENT SYSTEMS, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS TO CERTIFY THAT INTEGRATED PAYMENT SYSTEMS INC., a Delaware
corporation, has been issued this Certificate, pursuant to the Irrevocable
Voting Trust Agreement hereinafter referred to, in exchange for a certificate or
certificates for ____ shares of the Common Stock, $.01 par value, of MoneyGram
Payment Systems, Inc., a Delaware corporation (the "Company"). This Certificate
is issued pursuant to, and the rights of the holder hereof are subject to and
limited by, the terms of an Irrevocable Voting Trust Agreement, dated as of
________ __, 1996, executed by First Data Corporation, a Delaware corporation,
Integrated Payment Systems Inc., a Delaware corporation, and Wachovia Bank of
North Carolina, N.A., as Voting Trustee, a copy of which Irrevocable Voting
Trust Agreement is on file in the registered office of the Company, and is open
to inspection of any stockholder of the Company and the holder hereof. The
Irrevocable Voting Trust Agreement, unless earlier terminated (or extended)
pursuant to the terms thereof, will terminate on January 23, 1997.
The registered holder of this Certificate shall be entitled to the
benefits of said Irrevocable Voting Trust Agreement, including the right to
receive payments equal to the cash dividends, if any, paid by the Company with
respect to the number of shares represented by this Certificate.
This Certificate shall be transferable only on the books of the
undersigned Trustee or any successor. Such a transfer shall be recognized only
upon surrender of this Certificate (with the transfer form on the reverse hereof
having been filled out and properly executed) in accordance with the provisions
of the Irrevocable Voting Trust Agreement. Until so transferred, the Trustee
may treat the registered holder as the owner of this Voting Trust Certificate
for all purposes whatsoever, unaffected by any notice to the contrary.
By accepting this Certificate, the holder hereof assents to all the
provisions of, and becomes a party to, said Irrevocable Voting Trust Agreement.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
signed by its officer duly authorized.
___________, 1996 Wachovia Bank of North Carolina, N.A.
By:
________________________________
Authorized Officer
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[BACK OF VOTING TRUST CERTIFICATE]
FOR VALUE RECEIVED, INTEGRATED PAYMENT SYSTEMS INC. hereby sells,
assigns, and transfers unto __________________ the within Voting Trust
Certificate, and all rights and interest represented thereby, and does hereby
irrevocably constitute and appoint ______________________________________
Attorney to transfer said Voting Trust Certificate on the books of the within
mentioned Trustee, with full power of substitution in the premises.
___________________________________
Dated: ________________
In the Presence of:
SCHEDULE A
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Boystown
Boy Scouts of America
Girl Scouts of America
Open Door Mission
United Way of America
