EXHIBIT 10.4 - FORM OF IRREVOCABLE PROXY AGREEMENT
IRREVOCABLE PROXY AGREEMENT
This IRREVOCABLE PROXY AGREEMENT ("Proxy Agreement"), dated as
of September 24, 1997, is by and between Viad Corp, a Delaware corporation (the
"Parent") and the holder of common stock of Game Financial Corporation, a
Minnesota corporation (the "Company"), whose name is set forth on Appendix 1 to
this Proxy Agreement (the "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 Seller is the owner 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 Seller 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 Seller agree, and,
subject to the terms and conditions set forth in this Proxy Agreement, the
Seller 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 Seller. Seller
covenants, represents and warrants to the Parent that:
a. Seller has full power and capacity to execute and deliver
this Proxy Agreement.
b. This Proxy Agreement has been duly executed and delivered
by Seller, and assuming due execution and delivery hereof by Parent, this Proxy
Agreement is a valid and binding obligation of 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, Seller has, and through the Closing
Date Seller will have, full record and beneficial ownership of the Shares listed
opposite Seller's name on Appendix 1, 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. Seller will not 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, Seller agrees to vote all of
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
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 Seller or the
performance by Seller of its obligations hereunder.
g. In connection with the Merger Agreement, Seller will
furnish to the Parent information with respect to Seller as may be reasonably
requested by Parent and as may be required to comply with Applicable Laws.
h. Except as required by Applicable Law, Seller will not, in
any capacity, make any public announcement regarding this Proxy Agreement or the
Merger without the written consent of Parent.
i. Seller will promptly take such steps, if any, as may be
required insofar as 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. Seller will promptly furnish to the
Parent copies of all communications to Seller from, or from 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, Seller will not:
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; or
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.
k. Seller 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; and
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.
l. 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.
m. Seller acknowledges and agrees that if Seller's proxy is
voted in favor of the Merger, Seller will not be eligible to exercise any right
as a dissenting Shareholder with respect to the Merger or any related
transaction.
Section 2. Irrevocable Proxy.
From the date hereof and for one (1) year thereafter, Seller
hereby irrevocably appoints the Parent or any nominee of Parent, with full power
of substitution, as proxy for Seller, which proxy is coupled with an interest in
Seller's Shares, to vote all Shares which Seller is entitled to vote, for and in
the name, place and stead of 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.
This appointment shall revoke all prior powers of attorney and
proxies appointed by Seller at any time with respect to its Shares and no
subsequent powers of attorney or proxies will be appointed by Seller, or be
effective, with respect thereto during the term of this Agreement.
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 3. Specific Performance.
Parent hereby advises the Seller 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 Seller recognizes that its 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 Seller agrees that Parent shall be entitled to (i) require
Seller 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 Seller may, directly or indirectly, have become or propose to become a
party. The Seller further agrees 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 4. 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. 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 Seller, including any amendments or waivers to or matters required
to be taken in connection with, and receipt of notices under, this Proxy
Agreement; provided, however, that Parent shall promptly give notice to Seller
of any actions taken or notices received by Parent as Seller's agent hereunder.
c. Binding Effect. This Proxy Agreement shall be binding upon,
inure to the benefit of and be enforceable by, the Seller, the Parent, the
Company and 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 2 may be exercised by the
Parent, notwithstanding 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 the 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):
(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 Seller, at its address set forth on
Appendix 1, with a copy to:
___________________________
___________________________
___________________________
___________________________
Attn:______________________
Telephone: ________________
Fax:_______________________
f. 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.
g. 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. 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 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. Seller hereby irrevocably consents to the service of process in
connection with any legal matters or proceedings pertaining to this Proxy
Agreement or the transactions contemplated hereby, by the delivery of copies of
such process by registered or certified mail, return receipt requested, to
Seller to the address provided in Section 4(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 Seller in any other jurisdiction. In the event the Seller 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 Seller stipulates that such action shall be
dismissed.
h. Entire Agreements. This Agreement embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter hereof. 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.
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:
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Name:
Title:
SELLER:
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ACKNOWLEDGED:
GAME FINANCIAL CORPORATION,
a Minnesota corporation
By:
-----------------------------------
Name:
Title:
STATE OF MINNESOTA )
)ss.
County of Hennepin )
The foregoing instrument was acknowledged before me this _____ day of
September, 1997, by ________________________.
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NOTARY PUBLIC
My Commission Expires:
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Appendix 1
To Irrevocable Proxy Agreement
Shareholder Number of Shares Address
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