VOTING AGREEMENT
Exhibit
10.2
THIS
VOTING AGREEMENT
is made
and entered into as of the 22nd
day of
December, 2005, by and between:
(1) GAME
FINANCIAL CORPORATION,
a
corporation incorporated under the laws of Minnesota (“Game”);
and
(2) FASTFUNDS
FINANCIAL CORPORATION,
a
Nevada corporation (the “Shareholder”),
in
its capacity as the sole shareholder of Chex Services, Inc., a Minnesota
corporation (“Chex”).
W
I T N E S S E T H:
WHEREAS,
as of
the date hereof, the Shareholder owns of record and beneficially (as determined
in accordance with Rule 13d-3 promulgated under the Securities Exchange Act
of
1934, as amended) the number of shares of capital stock of Chex set forth on
the
signature page hereto, which constitute all of the issued and outstanding shares
of capital stock of Chex (such shares, or any other voting or equity securities
of Chex hereafter acquired by Shareholder prior to the termination of this
Agreement, being referred to herein collectively as the “Shares”);
and
WHEREAS,
contemporaneously
with the execution and delivery of this Agreement, Game, FastFunds and Chex
,
have entered into that certain Asset Purchase Agreement (the “Purchase
Agreement”),
pursuant to which, among other things and subject to certain conditions, Game
will purchase substantially all of the assets of Chex (the “Sale”);
and
WHEREAS,
as a
condition to the willingness of Game to enter into the Purchase Agreement,
Game
has required that the Shareholder agree, and in order to induce Game to enter
into the Purchase Agreement, the Shareholder is willing to agree, to vote in
favor of the sale by Chex of substantially all of its assets (which the Parties
acknowledge is being effected through the Sale) in accordance with and pursuant
to the Purchase Agreement and the related transactions (collectively, with
the
Sale, the “Transactions”);
and
WHEREAS,
capitalized terms used but not defined in this Agreement shall have the
respective meanings ascribed thereto in the Purchase Agreement;
NOW,
THEREFORE,
for and
in consideration of the premises and the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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1.
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Certain
Covenants
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1.1 Agreement
to Vote Shares.
(a) The
Shareholder hereby covenants and agrees that, during the period commencing
on
the date hereof and continuing until the Termination Date (as hereinafter
defined) (such period being referred to herein as the “Term”),
at
any annual, special or other meeting of shareholders of Chex and at any
adjournment or postponement thereof, however
called,
or pursuant to any written consent in lieu of a meeting or otherwise, such
Shareholder will appear at the meeting or otherwise cause the Shares to be
counted as present thereat for purposes of establishing a quorum, and will
vote
or consent (or cause to be voted or consented) all of his, her or its
Shares:
(i) in
favor
of the Transactions, including without limitation the approval and adoption
of
the Purchase Agreement, the approval of the Sale and the other actions
contemplated by the Purchase Agreement, and any actions required in furtherance
thereof;
(ii) against
approval of any proposal made in opposition to or in competition with the
consummation of the Transactions, including without limitation the Sale or
any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of
Chex under the Purchase Agreement or of such Shareholder under this Agreement,
or which would result in any of the conditions to consummation of the Sale
in
the Purchase Agreement not being fulfilled; and
(iii) against:
(i) any extraordinary corporate transaction (other than the Transactions,
including without limitation the Sale), such as a merger, consolidation,
business combination, tender or exchange offer, reorganization,
recapitalization, liquidation or other change of control involving Chex or
any
Subsidiary thereof, (ii) any sale or transfer of a material amount of the assets
or securities of Chex or any Subsidiary thereof (other than with respect to,
contemplated or permitted by, the Purchase Agreement) and (iii) any amendment
of
Chex’s articles of incorporation and bylaws or other proposal or transaction
involving Chex or any Subsidiary thereof which amendment or other proposal
or
transaction would in any manner impede, frustrate, prevent or nullify any
provision of the Purchase Agreement or the Sale or change in any manner the
voting rights of any class of Purchase’ capital stock.
(b) The
Shareholder agrees to deliver to Game a proxy in the form attached hereto as
Exhibit
A,
which
shall be irrevocable and coupled with an interest, with respect to the Shares,
subject to the other terms of this Agreement.
(c) The
Shareholder further agrees not to enter into any agreement or understanding
with
any Person the effect of which would be inconsistent with or violative of any
provision contained in this Agreement, the Transactions, or of the Purchase
Agreement, and that such Shareholder agrees not to exercise any dissenter’s
rights or similar appraisal rights otherwise available to such Shareholder
under
applicable law.
1.2 Transfer
and Other Restrictions.
The
Shareholder covenants and agrees that during the Term, such Shareholder shall
not, without Game’s prior written consent, directly or indirectly, (a) offer for
sale, sell, assign, transfer (including by merger or otherwise by operation
of
law), pledge, encumber or otherwise dispose of any of such Shareholder’s Shares,
(b) deposit any of such Shareholder’s Shares into a voting trust or enter into a
voting agreement or arrangement with respect to such Shareholder’s Shares or
grant any proxy or power of attorney with respect thereto which is inconsistent
with this Agreement, (c) enter into any contract, option or other agreement
or
understanding with respect to the direct or indirect sale, pledge, encumbrance,
assignment, transfer (including by merger or otherwise by operation of law)
or
other disposition of any of such Shareholder’s Shares, or (d) take any action
that would make
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any
representation or warranty of such Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Shareholder from
performing its obligations under this Agreement.
1.3 Solicitation
of Third Party Interest.
The
Shareholder acknowledges that its activities are subject to, among other
provisions, Section 8.10 of the Purchase Agreement. .
1.4 Further
Assurances.
The
Shareholder agrees to use all reasonable efforts to (i) take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other parties in doing, all things necessary, proper or advisable
to
consummate and make effective, in the most expeditious manner practicable,
the
Transactions, including without limitation the Sale, and (ii) refrain from
taking any action intended to impede, frustrate or prevent the Transactions,
including without limitation the Sale. The Shareholder also agrees that, from
time to time, at Game’s reasonable request, the Shareholder shall perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Game the power to carry out and give effect
to
the provisions of this Agreement.
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2.
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REPRESENTATIONS
AND WARRANTIES
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The
Shareholder represents and warrants to Game, as of the date hereof, as
follows:
2.1 Ownership
of Shares.
Such
Shareholder owns of record and beneficially all of the Shares set forth under
such Shareholder’s name on the signature page hereto and has good and marketable
title to such Shares, free and clear of any Liens, other than as expressly
provided in this Agreement. Such Shareholder owns no Chex Shares other than
the
Shares as set forth on the signature page hereto, and, except as set forth
in
the disclosure schedules attached to the Purchase Agreement, such Shareholder
holds no options to purchase or rights to subscribe for or otherwise acquire
any
securities of Chex and has no other interest in or voting rights with respect
to
any securities ofChex. Such Shareholder has sole voting power, without
restrictions, with respect to all of the Shares.
2.2 Authority.
Such
Shareholder has the requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated by this Agreement. The execution
and delivery of this Agreement by such Shareholder and the consummation by
such
Shareholder of the transactions contemplated by this Agreement have been duly
authorized by all necessary action. This Agreement has been duly executed and
delivered by such Shareholder and constitutes a valid and binding obligation
of
such Shareholder, enforceable against such Shareholder in accordance with its
terms, except (i) as the same may be limited by applicable bankruptcy,
insolvency, moratorium or similar laws of general application relating to or
affecting creditors’ rights, and (ii) for the limitations imposed by general
principles of equity. If this Agreement is being executed in a representative
or
fiduciary capacity, the person signing this Agreement has full power and
authority to enter into and perform such Agreement.
2.3 No
Conflict.
The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated hereby will not, conflict with or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a Lien on such Shareholder’s Shares or a right of
termination, cancellation or acceleration of any
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obligation
or to loss of a material benefit under, any provision of any loan or credit
agreement, note, bond, mortgage, indenture, lease, or other agreement,
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to such Shareholder,
such
Shareholder’s Shares or any of such Shareholder’s properties or assets. Except
as expressly contemplated hereby, or as set forth in the disclosure schedules
attached to the Purchase Agreement, such Shareholder is not a party to, and
such
Shareholder’s Shares are not subject to or bound in any manner by, any contract
or agreement relating to such Shareholder’s Shares, including without
limitation, any voting agreement, option agreement, purchase agreement,
shareholders’ agreement, partnership agreement or voting trust. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational, is required
by
or with respect to such Shareholder in connection with the execution and
delivery of this Agreement or the consummation by such Shareholder of the
transactions contemplated hereby. No consent, approval, order or authorization
of any Government is required by or with respect to such Shareholder in
connection with the execution and delivery of this Agreement by such Shareholder
or the consummation by such Shareholder of the transactions contemplated by
this
Agreement.
2.4 Certain
Acknowledgments.
Such
Shareholder understands and acknowledges that Game is entering into the Purchase
Agreement in reliance upon such Shareholder’s execution and delivery of this
Agreement and further acknowledges receipt and review of a copy of the Purchase
Agreement. Such Shareholder hereby affirms that the irrevocable proxy referred
to in Paragraph
1.1
constitutes an inducement for Game to enter into the Purchase Agreement, is
given in connection with the execution of the Purchase Agreement and is given
to
secure the performance of the duties of the Shareholder under this Agreement.
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3.
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TERMINATION
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3.1 This
Agreement shall terminate and shall have no further force or effect as of the
earlier to occur of (i) the Closing Time and (ii) such date and time as the
Purchase Agreement shall have been validly terminated pursuant thereto (the
“Termination
Date”),
provided
that
nothing herein shall relieve any party from liability hereof for breaches of
this Agreement prior to the Termination Date.
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4.
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MISCELLANEOUS
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4.1 Consent
to Jurisdiction and Venue. The
Shareholder hereby (a) irrevocably and unconditionally consents and submits
to
the personal jurisdiction of any state or federal court sitting in Pinellas
County, Florida, with respect to any action or proceeding arising out of or
relating to this Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that all claims in respect of such action or proceeding
may be heard and determined in any such court, (c) expressly consents and
submits to and agrees that venue in any such action or proceeding is proper
in
said courts and county, (d) expressly waives any and all personal rights under
applicable law or in equity to object to the jurisdiction and venue of said
courts and county, (e) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
and (f) waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety or
other
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security
that might be required of any other party with respect thereto. Any party hereto
may make service on another party by sending or delivering a copy of the process
to the party to be served at the address and in the manner provided for the
giving of notices in Paragraph
4.2;
provided,
however,
that
nothing in this Paragraph 4.1 shall affect the right of any party to serve
legal
process in any other manner permitted by law. The jurisdiction and venue of
the
courts and county consented and submitted to and agreed upon in this
Paragraph
4.1 are
not
exclusive, but are cumulative and in addition to the jurisdiction and venue
of
any other court under any applicable law or in equity.
4.2 Notices.
(a) All
notices, demands or other communications required or permitted to be given
or
made under this Agreement will be in writing and (i) delivered personally,
or
(ii) sent by an internationally recognized express courier service to the
intended recipient of the notice, demand or other communication at its address
set forth below. Any notice, demand or communication will be deemed to have
been
duly given (x) immediately if personally delivered, or (y) on the fourth
Business Day after delivery to an international express courier services, and
in
proving the giving of any notice, demand or other communication, it will be
sufficient to show that the envelope containing the notice, demand or other
communication was duly addressed (as evidenced by the courier receipt). The
addresses of the parties for purposes of this Agreement are:
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If
to Game:
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Game
Financial Corporation
Attention:
General Manager
00000
Xxxxxxxxx Xxxxxxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile:
(000) 000-0000
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With
a copy to (which shall not constitute
notice):
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Game
Financial Corporation
Attention:
Law Department
00000
Xxxxxxxxx Xxxxxxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile:
(000) 000-0000
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If
to FastFunds or the Shareholder:
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Xxxxx
Xxxx
Chairman
FastFunds
Financial Corporation
00000
Xxxxxxx Xxxx.
Xxxxx
000
Xxxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
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With
a copy to (which shall not constitute
notice):
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Xxxxxx
Xxxxxxx Xxxxxx & Brand, LLP
Attention:
Xxxx Xxxxx
3300
Xxxxx Fargo Centre
00
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
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(b) Any
party
may change the address to which notices, requests, demands or other
communications to the relevant party will be delivered or mailed by giving
notice of the address change to the other parties to this Agreement in the
manner provided in this Agreement.
4.3 Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the parties and delivered to
the
other party, it being understood that all parties need not sign the same
counterpart.
4.4 Entire Agreement;
Third Party Beneficiaries.
This
Agreement and its Exhibit constitute the entire agreement among the parties
with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, and are not intended to confer upon any other Person
any
rights or remedies hereunder.
4.5 Severability.
In the
event that any provision of this Agreement or the application thereof, becomes
or is declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force
and
effect and the application of such provision to other persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties hereto.
The parties further agree to replace such void or unenforceable provision of
this Agreement with a valid and enforceable provision that will achieve, to
the
extent possible, the economic, business and other purposes of such void or
unenforceable provision.
4.6 Other
Remedies; Specific Performance.
Except
as otherwise provided herein, any and all remedies herein expressly conferred
upon a party will be deemed cumulative with and not exclusive of any other
remedy conferred hereby, or by law or equity upon such party, and the exercise
by a party of any one remedy will not preclude the exercise of any other remedy.
The parties hereto agree that irreparable damage would occur in the event that
any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction,
this
being in addition to any other remedy to which they are entitled at law or
in
equity.
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4.7 Governing
Law.
This
Agreement shall be governed by, and construed, interpreted and enforced, in
accordance with the laws of the State of Florida, without regard to its
conflicts of laws principles.
4.8 Rules
of Construction.
The
parties hereto agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of
construction.
4.9 Binding
Effect and Assignment.
This
Agreement and all of the provisions hereof shall be binding upon and inure
to
the benefit of the parties hereto and their respective successors and permitted
assigns, but, except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of the parties hereto
may be assigned by any of the parties without prior written consent of the
other
parties, provided
that
Game may assign its rights, interests or obligations herein to any affiliate
of
Game that becomes a party to the Purchase Agreement for the purpose of
facilitating the consummation of the Sale. Any purported assignment in violation
of this section shall be void.
4.10 Waiver
Of Jury Trial.
EACH
PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE
PARTIES TO THIS AGREEMENT IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
4.11 Costs
And Attorneys’ Fees.
In the
event that any action, suit or other proceeding is instituted concerning or
arising out of this Agreement or any transaction contemplated hereunder, the
prevailing party shall recover all of such party’s costs and attorneys’ fees
incurred in each such action, suit or other proceeding, including any and all
appeals or petitions therefrom.
4.12 Titles
and Headings.
The
titles, captions and headings of this Agreement are included for ease of
reference only and will be disregarded in interpreting or construing this
Agreement. Unless otherwise specifically stated, all references herein to
“sections” and “exhibits” will mean “sections” and “exhibits” to this
Agreement.
4.13 Amendment
and Waivers. This
Agreement may be amended only by a written agreement executed by each of the
parties hereto. No amendment of or waiver of, or modification of any obligation
under this Agreement will be enforceable unless set forth in a writing signed
by
the party against which enforcement is sought. Any amendment effected in
accordance with this Section will be binding upon all parties hereto and each
of
their respective successors and assigns. No delay or failure to require
performance of any provision of this Agreement shall constitute a waiver of
that
provision as to that or any other instance. No waiver granted under this
Agreement as to any one provision herein shall constitute a subsequent waiver
of
such provision or of any other provision herein, nor shall it constitute the
waiver of any performance other than the actual performance specifically
waived.
[SIGNATURES
COMMENCE ON FOLLOWING PAGE]
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IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be executed personally or by
a
duly authorized representative thereof as of the day and year first above
written.
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GAME:
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GAME
FINANCIAL CORPORATION
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By:
/s/ Xxxx X. Xxxxxxx
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Name: Xxxx
X. Xxxxxxx
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Title: President
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IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be executed personally or by
a
duly authorized representative thereof as of the day and year first above
written.
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SHAREHOLDER:
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FASTFUNDS
FINANCIAL CORPORATION
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By:
/s/ Xxxxxxx X. Xxxxxxx
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Name:Xxxxxxx
X. Xxxxxxx
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Title:
Acting
CEO
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Address:
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00000
Xxxxxxx Xxxx
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| Xxxxx 000 | |
| Xxxxxxxxxx, XX 00000 | |
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Facsimile:
(000) 000-0000
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With
a copy to:
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Facsimile:
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Number
and Class(es) of Shares Held Beneficially or of Record by Shareholder:
Common
Stock:
____________
shares owned beneficially and _________ shares owned of record.
EXHIBIT
A
IRREVOCABLE
PROXY
The
undersigned Shareholder (the “Shareholder”)
of
Chex Services, Inc., a Minnesota corporation (“Chex”), hereby irrevocably
appoints and constitutes the members the Board of Directors of Game Financial
Corporation, a Minnesota corporation (“Game”),
and
each such Board member (collectively the “Proxyholders”),
the
agents, attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned’s rights
with respect to the shares of capital stock of Chex that are listed below (the
“Shares”),
and
any and all other shares or securities issued or issuable in respect thereof
on
or after the date hereof and prior to the date this Irrevocable Proxy
terminates, to vote the Shares as follows: the agents and proxies named above
are empowered at any time prior to termination of this Irrevocable Proxy to
exercise all voting and other rights (including, without limitation, the power
to execute and deliver written consents with respect to the Shares) of the
undersigned at every annual, special or other meeting of shareholders of Chex
and at any adjournment or postponement thereof, however called, or pursuant
to
any written consent in lieu of a meeting or otherwise, such Shareholder will
appear at the meeting or otherwise cause the Shares to be counted as present
thereat for purposes of establishing a quorum and vote or consent (or cause
to
be voted or consented): (i) in favor of the approval and adoption of the Asset
Purchase Agreement among Game, FastFunds Financial Corporation and Chex (the
“Purchase Agreement”),
the
approval of the sale to Game of substantially all of the assets of Chex, each
as
used in the Business, as defined in the Purchase Agreement (the “Sale”)
and
the other actions contemplated by the Purchase Agreement, and any actions
required in furtherance thereof; (ii) against approval of any proposal made
in
opposition to or in competition with the consummation of the Sale or any action
or agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of Chex under
the Purchase Agreement or of such Shareholder under this Agreement, or which
would result in any of the conditions to consummation of the Sale in the
Purchase Agreement not being fulfilled; and (iv) against: (A) any extraordinary
corporate transaction (other than the Sale), such as a merger, consolidation,
business combination, tender or exchange offer, reorganization,
recapitalization, liquidation or other change of control involving Chex or
any
Subsidiary thereof, (B) any sale or transfer of a material amount of the assets
or securities of Chex or any Subsidiary thereof (other than with respect to,
contemplated or permitted by, the Purchase Agreement) and (C) any amendment
of
Chex articles of incorporation and bylaws or other proposal or transaction
involving Chex or any Subsidiary thereof, which amendment or other proposal
or
transaction would in any manner impede, frustrate, prevent or nullify any
provision of the Purchase Agreement or the Sale or change in any manner the
voting rights of any class of Chex’s capital stock. The Proxyholders may not
exercise this Irrevocable Proxy on any other matter.
The
Shareholder may vote the Shares on all such other matters, subject to such
other
agreements as the Shareholder may be subject to, or bywhich the Shareholder
or
the Shares may be bound. The Irrevocable Proxy granted by Shareholder to the
Proxyholders hereby is granted as of the date of this Irrevocable Proxy in
order
to secure the obligations of such Shareholder set forth in Paragraph
1.1
of the
Voting Agreement, and is irrevocable and coupled with an interest in such
obligations.
This
Irrevocable Proxy will terminate upon the termination of the Voting Agreement
in
accordance with its terms. Upon the execution hereof, all prior proxies, voting
agreements or powers-of-attorney given by the undersigned Shareholder with
respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked
and
no subsequent proxies or powers-of attorney will be given, nor voting agreements
made until such time as this Irrevocable Proxy shall be terminated in accordance
with its terms. All authority conferred herein shall survive the death or
incapacity of the Shareholder and any obligation of the Shareholder hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the Shareholder. The undersigned Shareholder authorizes the
Proxyholders to file this Irrevocable Proxy and any substitution or revocation
of substitution with the Secretary of Chex and with any inspector of elections
at any meeting of shareholders ofChex.
This
Irrevocable Proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned.
DATED:
____________, 2005.
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Signature
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Name:
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Title:
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Address:
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Number
and Class(es) of Shares Held Beneficially or of Record by
Shareholder:
Common
Stock:
____________
shares owned beneficially and _________ shares owned of record.
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