EXHIBIT 10.2 - XXXX X. XXXXXX IRREVOCABLE PROXY AGREEMENT
[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,
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
(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.
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.
(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
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.]
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
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President and CEO of
Travelers Express Company, Inc.
SELLER:
/s/ Xxxx X. Xxxxxx
-------------------------------------
XXXX X. XXXXXX
ACKNOWLEDGED AND ACCEPTED:
GAME FINANCIAL CORPORATION,
a Minnesota corporation
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Appendix 1
To Irrevocable Proxy Agreement
Shareholder Number of Shares Address
----------- ---------------- -------
Xxxx X. Xxxxxx 2,050,170
