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EXHIBIT 99.4
[EXECUTION COPY]
IRREVOCABLE PROXY AGREEMENT
This IRREVOCABLE PROXY AGREEMENT ("Proxy Agreement"), dated as of
September 24, 1997, is by and among Viad Corp, a Delaware corporation (the
"Parent") and certain holders of common stock of Game Financial Corporation, a
Minnesota corporation (the "Company"), whose names are set forth on Appendix 1
to this Proxy Agreement (hereinafter collectively called the "Sellers" and
individually called a "Seller").
RECITALS:
WHEREAS, the Company and the Parent have determined that their best
interests and the best interests of their respective shareholders would be
served by combining their businesses and operations and, for such purpose, the
Company and the Parent concurrently herewith are entering into an Agreement and
Plan of Merger of even date herewith (the "Merger Agreement") providing for the
merger (the "Merger") of the Company with a subsidiary of the Parent;
WHEREAS, the Sellers are the owners of shares of the Company's
common stock (the "Company Common Stock") as set forth on Appendix 1 (the
"Shares"). As used herein, "Shares" shall also include any shares of Common
Stock or any other voting stock of Company acquired by the Sellers after the
date of this Proxy Agreement;
WHEREAS, as a condition to the Parent's willingness to enter into
the Merger Agreement, Parent has requested that the Sellers agree, and, subject
to the terms and conditions set forth in this Proxy Agreement, each of the
Sellers hereby agrees, to grant to Parent an irrevocable proxy to vote those
Shares on certain matters relating to the Merger, as more fully set forth
herein.
AGREEMENT:
NOW THEREFORE, in order to induce Parent to enter into the Merger
Agreement, and in consideration of the foregoing recitals and the mutual
covenants and agreements set forth herein, the parties, intending to be legally
bound hereby, agree as follows (capitalized terms used herein without definition
having the meanings set forth in the Merger Agreement):
Section 1. Covenants, Representations and Warranties of Sellers. Sellers
jointly and severally covenant, represent and warrant to the Parent that:
(a) Each Seller has full power and capacity to execute and deliver
this Proxy Agreement.
(b) This Proxy Agreement has been duly executed and delivered by
each Seller, and assuming due execution and delivery hereof by Parent, this
Proxy Agreement is a valid and binding obligation of each Seller, enforceable in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by the principles governing the availability of equitable remedies.
(c) On the date hereof, each Seller has, and through the Closing
Date each Seller will have, full record and beneficial ownership of the Shares
listed opposite each Seller's name on Appendix 1,
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free and clear of all liens, encumbrances, security interests, rights, claims or
equities of any nature whatsoever (including without limitation any voting
rights granted to any third party with respect to such Shares).
(d) No Seller will grant to any person or entity (other than to
Parent) any proxy with respect to voting of the Shares.
(e) If, for any reason whatsoever, the proxy granted hereby is
ineffective, or upon written request by Parent, each Seller agrees to vote all
of such Seller's Shares in favor of the Merger Agreement and the transactions
contemplated thereby.
(f) Neither the execution and delivery of this Proxy Agreement nor
the consummation of the transactions contemplated hereby will violate or result
in any violation of, or be in conflict with or constitute a default under, or
require the consent of any person under any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Seller. No consent, approval, order or authorization of, or registration,
declaration or filing with, any governmental authority is required in connection
with the execution and delivery of this Proxy Agreement by such Seller or the
performance by such Seller of its obligations hereunder.
(g) In connection with the Merger Agreement, each Seller will
furnish to the Parent information with respect to such Seller as may be
reasonably requested by Parent and as may be required to comply with Applicable
Laws. Each Seller shall comply with, and use its best efforts to cause the
Company to comply with, all of their respective covenants and obligations under
the Merger Agreement, including, without limitation, the provisions set forth in
Articles VI and VII and Section 9.2 of the Merger Agreement.
(h) Except as required by Applicable Law, no Seller will, in any
capacity, make any public announcement regarding this Proxy Agreement or the
Merger without the written consent of Parent.
(i) Each Seller will promptly take such steps, if any, as may be
required insofar as such Seller is concerned with respect to filings under the
HSR Act and will promptly furnish such additional materials and information as
the Federal Trade Commission ("FTC") or the Antitrust Division of the Department
of Justice ("Antitrust Division") may require. Each Seller will promptly furnish
to the Parent copies of all communications to such Seller from, or from such
Seller to, the FTC or the Antitrust Division, or any other governmental agency
or authority in respect of this Proxy Agreement or the Merger, and shall
promptly advise the Parent of any material oral communications with any such
agencies.
(j) From and after the date of this Proxy Agreement and unless and
until this Proxy Agreement is terminated, none of the Sellers will:
(i) Solicit or initiate, directly or indirectly, any inquiries
or acquisition proposals, or participate in any negotiations concerning,
or provide any information in connection with, any proposal concerning a
merger or other business combination involving the Company, or the
acquisition of any equity interest in or a substantial portion of the
assets of, the Company, other than the acquisition contemplated by this
Proxy Agreement and the Merger Agreement, provided, however, that Xxxx X.
Xxxxxx may assist the Company in furnishing information in connection with
an unsolicited Third Party Offer in accordance with Section 7.2(c) of the
Merger Agreement; or
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(ii) Engage in any course of conduct, execute any documents or
otherwise act in such manner as to impede or render more difficult the
consummation of this Proxy Agreement or the Merger, provided, however,
that nothing herein shall limit Seller's rights solely in its capacity as
a shareholder of the Company.
(l) Each of the Sellers will give prompt written notice to the
Parent upon acquisition of knowledge or receipt of notice of any of the
following:
(i) Any written or oral communication from any third party
alleging that the consent of such third party is or may be required in
connection with any of the transactions contemplated by this Proxy
Agreement or the Merger Agreement;
(ii) Any written or oral communication from any third party
challenging the legality or fairness of any of the transactions
contemplated by this Proxy Agreement or the Merger Agreement; and
(iii) The occurrence of any event or the failure of any event
to occur which involves or results in a breach of any representation or
warranty by any other Seller hereunder or by the Company under the Merger
Agreement or any failure by any other Seller to comply with any covenant,
condition or agreement hereunder, or any failure by the Company to comply
with any material covenant, condition or agreement under the Merger
Agreement.
(m) Each Seller will fully cooperate with the Parent and the Company
to consummate the Merger Agreement and execute and deliver all documents and
perform all acts necessary or appropriate to assure the successful completion of
such agreement, subject, however, to the satisfaction of the conditions to
Parent's obligations set forth in the Merger Agreement.
(n) Each Seller acknowledges and agrees that if such Seller's proxy
is voted in favor of the Merger, such Seller will not be eligible to exercise
any right as a dissenting Shareholder with respect to the Merger or any related
transaction.
Section 3. Irrevocable Proxy.
From the date hereof and for one (1) year thereafter, each Seller
hereby irrevocably appoints the Parent or any nominee of Parent, with full power
of substitution, as proxy for such Seller, which proxy is coupled with an
interest in their respective Shares, to vote all Shares which such Seller is
entitled to vote, for and in the name, place and stead of such Seller with
respect to the Merger, at any annual, special or other meeting of the holders of
Common Stock or other voting stock of the Company and at any adjournment thereof
or pursuant to any written consent in lieu of a meeting, or otherwise called to
vote with respect to the Merger. Parent's termination of the Merger Agreement in
accordance with its terms shall operate to terminate the foregoing proxy unless
such termination is based upon a breach of such Agreement by the Company or
Seller.
This appointment shall revoke all prior powers of attorney and
proxies appointed by any Seller at any time with respect to their respective
Shares and no subsequent powers of attorney or proxies will be appointed by any
Seller, or be effective, with respect thereto during the term of this Agreement.
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Each Seller agrees to perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in the
Parent the power to carry out and give effect to the provisions of this Proxy
Agreement.
Section 4. Specific Performance.
Parent hereby advises the Sellers that the transactions contemplated
by this Proxy Agreement and the Merger Agreement represent a unique opportunity
for the Parent to acquire the business and operations of the Company; and that
such acquisition presents a unique opportunity for the Parent to strengthen its
financial condition so as to permit the Parent to expand its current operations
and possibly to acquire additional businesses, and to improve its future
earnings. The Sellers recognize that their failure to carry out the terms of
this Proxy Agreement could result in financial injury to Parent which would be
substantial, irreparable and not susceptible of measurement. Accordingly, the
Sellers agree that Parent shall be entitled to (i) require each of the Sellers
specifically to perform its respective obligations under this Proxy Agreement
and (ii) xxx in any court of competent jurisdiction to obtain such specific
performance and to enjoin any transaction inconsistent therewith to which any
Seller may, directly or indirectly, have become or propose to become a party.
The Sellers further agree to waive any requirement for a bond and not to contest
any of the matters set forth in the first sentence of this Section, in the event
of any attempt by Parent to seek any such remedy.
Section 5. Miscellaneous.
(a) Payment of Expenses. Each party hereto shall pay its own
expenses incurred in connection with this Proxy Agreement.
(b) Amendments; Assignability. This Proxy Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the party or parties sought to be
affected. No party to this Proxy Agreement may assign any of its rights or
obligations under this Proxy Agreement without the prior written consent of the
other parties; provided, however that Parent may assign any of its rights or
obligations to any Subsidiary or Affiliate of Parent without such prior written
consent. This Proxy Agreement does not create or confer any rights in favor of
any third person or entity which is not a party to this Proxy Agreement or the
Merger Agreement. Each Seller, by executing this Proxy Agreement, hereby
authorizes Parent to act as its agent with respect to all matters in this Proxy
Agreement relating to such Seller, including any amendments or waivers to or
matters required to be taken in connection with, and receipt of notices under,
this Proxy Agreement.
(c) Binding Effect. This Proxy Agreement shall be binding upon,
inure to the benefit of and be enforceable by, each of the Sellers, the Parent,
the Company and such Seller's, the Company's or the Parent's respective heirs,
beneficiaries, executors, successors, representatives and permitted assigns, as
the case may be. The proxy granted under Section 3 may be exercised by the
Parent, notwithstanding any such Seller's intervening death, dissolution or
incompetency.
(d) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given when delivered in person,
by facsimile, receipt confirmed, or on next business day when sent by overnight
carrier or on the second succeeding business day when sent by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following address (or such other address for such party as shall
be specified by like notice.
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(i) If to Parent, to:
Viad Corp
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Travelers Express Co.
0000 Xxxxx Xxxxxx Xxxxx
Mail Stop 8060
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
and to:
Xxxxx Xxxx LLP
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(ii) If to any of the Sellers, at their respective addresses set
forth on Appendix l, with a copy to:
Xxxxxxxxxx & Xxxxx, P. A.,
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(e) Counterparts. This Proxy Agreement may be executed in two or
more counterparts, each of which will be deemed to be an original, but all of
which together will constitute one and the same instrument.
(f) Governing Law; Jurisdiction. This Proxy Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Arizona applicable to contracts made and to be performed therein. Each Seller
(i) hereby irrevocably submits to the jurisdiction of, and agrees that any suit
by it shall be brought only in, the state and federal courts located in the City
of Phoenix and State of
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Arizona for the purpose of any suit, action or other proceeding arising out of
or based upon this Proxy Agreement or the transactions contemplated hereby, and
(ii) hereby waives to the extent not prohibited by applicable law, and agrees
not to assert, by way of motion, as a defense or otherwise, in any such
proceeding, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or
execution, that any such proceeding brought in one of the above-named courts is
improper, or that this Proxy Agreement, or the transactions contemplated hereby,
may not be enforced in or by such court. Each Seller hereby irrevocably
designates and appoints Viad Corp as its authorized agent to receive service of
process on its behalf in connection with any legal matters or proceedings
pertaining to this Proxy Agreement or the transactions contemplated hereby and
hereby consents to service of process in any such proceeding by registered or
certified mail, return receipt requested, at such address. As an alternative
method of service, each Seller also irrevocably consents to the service of
process in any such matter or proceeding by the delivery of copies of such
process to such Seller to the address provided in Section 5(d). Nothing
contained in this Section shall affect the right of the Parent to serve process
in any other manner permitted by law or commence legal proceedings or otherwise
proceed against the Sellers in any other jurisdiction. In the event the Sellers
should commence or maintain any action arising out of or related to this Proxy
Agreement in a forum other than the state and federal courts located in the City
of Phoenix and State of Arizona, the Parent shall be entitled to request the
dismissal of such action, and such Seller stipulates that such action shall be
dismissed.
(g) Entire Agreement. This Agreement and the documents or
instruments referred to herein including, but not limited to, the Merger
Agreement, the Selling Shareholder's Agreement, the Escrow Agreement and the
Stock Option Agreement and their respective Exhibits and Schedules, embody the
entire agreement and understanding of the parties hereto in respect of the
subject matter contained thereof. There are no restrictions, promises,
representations, warranties, covenants, or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[Intentionally left blank.]
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IN WITNESS WHEREOF, this Proxy Agreement has been duly executed and
delivered by Parent and the Seller whose names appear below as of the day and
year first above written.
VIAD CORP, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President and CEO of
Travelers Express Company,
Inc.
SELLER:
/s/ XXXX X. XXXXXX
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XXXX X. XXXXXX
ACKNOWLEDGED AND ACCEPTED:
GAME FINANCIAL CORPORATION,
a Minnesota corporation
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President
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Appendix 1
To Irrevocable Proxy Agreement
Shareholder Number of Shares Address
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Xxxx X. Xxxxxx 2,050,170
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