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Exhibit 99(c)(2)
February 11, 1998
Xx. Xxxxxx Xxxxxxxx
Chief Executive Officer
Viad Corp
0000 Xxxxx Xxxxxxx Xxx.
Xxxxxxx, XX 00000
CONFIDENTIALITY AGREEMENT
Dear Xx. Xxxxxxxx:
In connection with your interest in a potential acquisition transaction
(the "Transaction") involving MoneyGram Payment Systems, Inc. (the "Company"),
you have requested that we or our representatives furnish you or your
representatives with certain information relating to the Company or the
Transaction. All such information (whether written or oral) furnished after the
date hereof by us or our directors, officers, employees, affiliates,
representatives (including, without limitation, financial advisors, attorneys
and accountants) or agents (collectively, "our Representatives") to you or your
directors, officers, employees, affiliates, representatives (including, without
limitation, financial advisors, attorneys and accountants) or agents or your
potential sources of financing for the Transaction (collectively, "your
Representatives") and all analyses, compilations, forecasts, studies or other
documents prepared by you or your Representatives in connection with your or
their review of, or your interest in, the Transaction which contain or reflect
any such information is hereinafter referred to as the "Information." The term
Information does not, however, include information which (i) is or becomes
publicly available other than as a result of a disclosure by you or your
Representatives; (ii) is in the possession of you or your Representative prior
to the date hereof, and was obtained from a source, or becomes available to you
or your Representatives from a source (other than us or our Representatives)
which is in either case, to the best of your knowledge or your Representatives'
knowledge, is, or was at the time, not prohibited from disclosing such
information to you or your Representative, as the case may be, by a legal,
contractual or fiduciary obligation to us; or (iii) is independently developed
by you or your Representatives.
Accordingly, you hereby agree that:
1. You and your Representatives (i) will keep the Information confidential
and will not (except as otherwise required by law, regulation or legal process,
and only after compliance with paragraph 3 below, or except as expressly
permitted by a definitive acquisition agreement entered into with respect to the
Transaction), without our prior written consent, disclose any Information in any
manner whatsoever, and (ii) will not use any Information other than in
connection with the Transaction; provided, however, that you may reveal the
Information to your Representatives (a) who need to know the Information for the
purpose of evaluating the Transaction, (b) who are informed by you of the
confidential nature of the Information, and (c) who agree to act in accordance
with the terms of this letter agreement. You will cause your Representatives to
observe the terms of this letter agreement, and by any of your Representatives.
2. You and your Representatives will not (except as otherwise required by
law, regulation or legal process, and only after compliance with paragraph 3
below, or except as expressly permitted by a definitive acquisition agreement
entered into with respect to the Transaction), without our prior written
consent, disclose to any person the fact that the Information exists or has been
made available, that you are considering the Transaction or any other
transaction involving the Company, or that discussions or negotiations are
taking or have taken place concerning the Transaction or involving the Company
or any term, condition or other fact relating to the Transaction or such
discussions or negotiations, including, without limitation, the status thereof,
3. In the event that you or any of your Representatives are requested
pursuant to, or required by, law, regulation or legal process to disclose any of
the Information, you will notify us promptly so that we may seek a
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protective order or other appropriate remedy or, in our sole discretion, waive
compliance with the terms of this letter agreement. In the event that no such
protective order or other remedy is obtained, or that the Company waives
compliance with the terms of this letter agreement, you will furnish only that
portion of the Information which you are advise by your counsel is legally
required.
4. If you determine not to proceed with the Transaction, you will promptly
inform our Representative, Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx"),
of that decision and, in that case, and at any time upon the request of the
Company or any of our Representatives, you will either (i) promptly destroy, or
cause to be destroyed in connection with your Representatives, all copies of the
written Information in your or your Representatives' possession and confirm such
destruction to us writing, or (ii) promptly deliver, or cause to be delivered in
connection with your Representatives, to the Company at your own expense all
copies of the written Information in your or your Representatives' possession.
Any oral Information will continue to be subject to the terms of this letter
agreement.
5. You acknowledge that neither we, nor Xxxxxx Xxxxxxx or its affiliates,
nor our other Representatives, nor any of our or their respective officers,
directors, employees, agents or controlling persons within the meaning of
Section 20 of the Securities Exchange Act of 1934, as amended, makes any express
or implied representation of (sic) warranty as to the accuracy or completeness
of the Information, and you agree that no such person will have any liability
relating to the Information or for any errors therein or omissions therefrom.
You further agree that you are not entitled to rely on the accuracy or
completeness of the Information and that you will be entitled to rely solely on
such representations and warranties as may be included in any definitive
agreement with respect to the Transaction, subject to such limitations and
restrictions as may be contained therein.
6. You are aware, and you will advise your Representatives who are
informed of the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the purchase or
sale of securities by any person who has received material, nonpublic
information from the issuer of such securities and on the communication of such
information to any other person when it is reasonably foreseeable that such
other person is likely to purchase or sell such securities in reliance upon such
information.
7. In consideration of receiving material nonpublic information as
described in the first paragraph of this agreement, and subject to the immediate
paragraph below, you agree that, for a period of one year from the date of this
letter agreement, neither you nor any of your affiliates will, without the prior
written consent of the Company or its Board of Directors: (i) acquire, offer to
acquire, or agree to acquire, directly or indirectly, by purchase or otherwise,
any voting securities or direct or indirect rights to acquire any voting
securities of the Company or any subsidiary thereof, or any assets of the
Company or any subsidiary or division thereof; (ii) make, or in any way
participate in, directly or indirectly, any "solicitation" of "proxies" (as such
terms are used in the rules of the Securities Exchange Commission) to vote, or
seek to advise or influence any person or entity with respect to the voting of,
any voting securities of the Company; (iii) make any public announcement with
respect to, or submit a proposal for, or offer of (with or without conditions)
any extraordinary transaction involving the Company or its securities or assets;
(iv) form, join or in any way participate in a "group" (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended) in connection with
any of the foregoing; or (v) request the Company or any of our Representatives,
directly or indirectly, to amend or waive any provision of this paragraph.
In the event that any other person or entity not affiliated or otherwise
acting with you (i) makes an unsolicited public announcement of its desire to
enter into an Acquisition Transaction (as defined below), setting forth a
proposed purchase price and other material terms and conditions of such proposed
transaction, or (ii) enters into an agreement with the Company providing for an
Acquisition Transaction, you may then make any proposal (or request permission
to make any proposal) to engage in an Acquisition Transaction. For purposes of
this Agreement, an "Acquisition Transaction" shall mean any merger or other
business combination or acquisition of any substantial part of the assets or
greater than 25% of the voting stock of the Company.
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8. You agree that, for a period of eighteen (18) months from the date of
this letter agreement, you will not, directly or indirectly, solicit for
employment any employee of the Company or any of its subsidiaries with whom you
have had contact, or who became known to you, after the date of this letter
agreement in connection with your consideration of the Transaction so long as
they are employed by the Company or any of its subsidiaries and for a period of
three months thereafter. Provided, however, the foregoing restriction on
solicitation of employees does not apply (i) general solicitations for
employment, (ii) to situations in which you have not knowingly solicited for
hire, or assisted in the hiring of, any person presently employed by or for the
Company or any of its subsidiaries, or (iii) individuals who have already
interviewed with you concerning an employment opportunity prior to the date
hereof.
9. You agree that all (i) communications regarding the Transaction, (ii)
requests for additional information, facility tours or management meetings, and
(iii) discussions or questions regarding procedures with respect to the
Transaction, will be first submitted or directed to Xxxxxx Xxxxxxx and not to
the Company. You acknowledge and agree that (a) we and our Representatives are
free to conduct the process leading up to a possible Transaction as we and our
Representatives, in our sole discretion, determine (including, without
limitation, by negotiating with any prospective buyer and entering into a
preliminary or definitive agreement without prior notice to you or any other
person), (b) we reserve the right, in our sole discretion, to change the
procedures relating to our consideration of the Transaction at any time without
prior notice to you or any other person, to reject any and all proposals made by
you or any of your Representatives with regard to the Transaction, and to
terminate discussions and negotiations with you at any time and for any reason,
and (c) unless and until a written definitive agreement concerning the
Transaction has been executed, neither of us, our Representatives or your
Representatives will have any liability, other than as set forth herein, with
respect to the Transaction.
10. You acknowledge that remedies at law may be inadequate to protect us
against any actual or threatened breach of this letter agreement by you or by
your Representatives, and, without prejudice to any other rights and remedies
otherwise available to us, you agree that Company shall have the right to
petition for injunctive relief from a court of competent jurisdiction as may be
necessary and appropriate to prevent any unauthorized use of Information by you
or your Representatives, and that you will not oppose such injunction on the
grounds that an adequate remedy is available at law. In the event of litigation
relating to this letter agreement, if a court of competent jurisdiction
determines in a final, nonappealable order that this letter agreement has been
breached by you or by your Representatives, then you will reimburse the Company
for its reasonable costs and expenses (including, without limitation, legal fees
and expenses) incurred in connection with all such litigation.
11. You agree that no failure or delay by us in exercising any right,
power or privilege hereunder will operate as a waiver thereof, nor will any
single or partial exercise thereof preclude any other further exercise thereof
or the exercise of any right, power or privilege hereunder.
Accordingly, Company hereby agrees that:
12. Company and our Representatives will not (except as otherwise required
by law, regulation or legal process), without your prior written consent,
disclose to any person the fact that you are considering the Transaction or any
other transaction involving the Company, or that discussions or negotiations are
taking or have taken place concerning the Transaction or involving you and your
Representatives or any term, condition or other fact relating to the Transaction
or such discussions or negotiations, including, without limitation, the status
thereof.
13. In the event that you are the prevailing party in litigation relating
to this letter agreement, then Company will reimburse you for your costs and
expenses (including, without limitation, legal fees and expenses) incurred in
connection with all such litigation.
Accordingly, the parties hereto hereby agree that:
14. This letter agreement will be governed by and construed in accordance
with the laws of the State of Delaware applicable to contracts between residents
of that State and executed in and to be performed in that State.
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15. All obligations under this letter agreement shall terminate upon the
consummation of a Transaction with you, or one year after the date hereof,
except in connection with paragraph 8 above, which is eighteen (18) months after
the date hereof, whichever shall occur sooner.
16. This letter agreement contains the entire agreement between you and us
concerning the confidentiality of the Information, and no modifications of this
letter agreement or waiver of the terms and conditions hereof will be binding
upon you or us, unless approved in writing by each of you and us.
Please confirm your understanding and agreement with the foregoing by
signing and returning to the undersigned the duplicate copy of this letter
enclosed herewith.
Very truly yours,
MONEYGRAM PAYMENT SYSTEMS, INC.
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: Chief Financial Officer
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Accepted and Agreed as of the
date first written above.
VIAD CORP
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: President/CEO of Travelers Express Company, Inc.
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