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EXHIBIT 99.5
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).
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(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:
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(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
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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
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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:
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. 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
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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.
(g) 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:____________________________________
Name:
Title:
SELLER:
_______________________________________
XXXXX XXXXXX, AS TRUSTEE FOR THE
XXXXXX X. XXXXXX IRREVOCABLE TRUST,
DATED AS OF DECEMBER 28, 1993
_______________________________________
XXXXX XXXXXX, AS TRUSTEE FOR THE
XXXXX X. XXXXXX IRREVOCABLE TRUST,
DATED AS OF DECEMBER 28, 1993
ACKNOWLEDGED:
GAME FINANCIAL CORPORATION,
a Minnesota corporation
By:_________________________________
Name:
Title:
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STATE OF MINNESOTA )
)ss.
County of Hennepin )
The foregoing instrument was acknowledged before me this _____ day of
September, 1997, by Xxxxx Xxxxxx, as Trustee for the Xxxxxx X. Xxxxxx
Irrevocable Trust, dated as of December 28, 1993.
_______________________________________
NOTARY PUBLIC
My Commission Expires:
________________________________
STATE OF MINNESOTA )
)ss.
County of Hennepin )
The foregoing instrument was acknowledged before me this _____ day of
September, 1997, by Xxxxx Xxxxxx, as Trustee for the Xxxxx X. Xxxxxx Irrevocable
Trust, dated as of December 28, 1993.
_______________________________________
NOTARY PUBLIC
My Commission Expires:
_________________________________
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Appendix 1
To Irrevocable Proxy Agreement
Shareholder Number of Shares Address
----------- ---------------- -------
Xxxxx Xxxxxx, as Trustee for the
Xxxxxx X. Xxxxxx Irrevocable Trust,
dated as of December 28, 1993.
Xxxxx Xxxxxx, as Trustee for the
Xxxxx X. Xxxxxx Irrevocable Trust,
dated as of December 28, 1993
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