EXHIBIT 10.5 - STOCK OPTION AGREEMENT
[EXECUTION COPY]
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT ("Agreement"), dated as of
September 24, 1997, is by and among Viad Corp, a Delaware corporation (the
"Parent") and Game Financial Corporation, a Minnesota corporation (the
"Company").
RECITALS:
WHEREAS, the Company and the Parent have determined that their
respective 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 of a subsidiary of the Parent with and into
the Company (the "Merger");
WHEREAS, as a condition to the Parent's willingness to enter
into the Merger Agreement, Parent has requested and Company hereby agrees,
subject to the terms and conditions set forth in this Agreement, to grant to
Parent an irrevocable option to purchase One Million Five Hundred Thousand
(1,500,000) shares of the Company's Common Stock ("Shares"), 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 premises and the representations,
warranties, 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. Option to Purchase Shares.
(a) Subject to the terms and conditions contained in this
Agreement, the Company hereby grants to Parent an irrevocable option to purchase
one million five hundred thousand (1,500,000) shares of the Company's Common
Stock (the "Option Shares").
(b) The purchase price of each Option Share to be purchased by
the Parent pursuant to the option provided for in this Agreement (the "Option")
shall be $10.00 per share (the "Purchase Price"), to be paid in cash ("Purchase
Consideration").
Section 2. Representations and Warranties of Company.
Company represents and warrants to Parent that:
(a) The Company has full power and capacity to execute and
deliver this Agreement.
(b) This Agreement, the grant of the Option, the issuance of
the Option Shares and the consideration to be received by the Company for the
Option Shares have been duly approved by all corporate action required under the
Company's Articles and Bylaws and by the laws of the Company's state of
incorporation, and any other Applicable Laws.
(c) This Agreement has been duly executed and delivered by the
Company, and assuming due execution and delivery hereof by Parent, this
Agreement is a valid and binding obligation of
the Company, 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.
(d) Neither the execution and delivery of this 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 the
Company. 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 Agreement by the Company or the
performance by the Company of its obligations hereunder, except for compliance
with the HSR Act.
(e) The Company has sufficient authorized and unissued Common
Stock and/or issued Common Stock held in treasury to enable it to issue the full
number of Option Shares.
(f) The representations and warranties of the Company set
forth in the Merger Agreement are true and correct and are incorporated herein
by this reference as is fully set forth herein.
Section 3. Representations and Warranties of the Parent.
The Parent represents and warrants to the Company that:
(a) The Parent is acquiring the Option and, upon exercise of
the Option, the Parent would be purchasing the Option Shares for its own account
and not with a view toward distribution and will not distribute, resell or offer
the Option or the Option Shares or any part thereof or any interest therein
unless registered pursuant to the provisions of the Securities Act or unless an
exemption from registration is available thereunder.
(b) This Agreement has been duly executed and delivered by the
Parent, and has been duly authorized by the Parent by all necessary corporate
action and, assuming due authorization, execution and delivery hereof by each
other party hereto, is a valid and binding obligation of the Parent enforceable
in accordance with its terms, except as such 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) The representations of the Parent set forth in the Merger
Agreement are true and correct and are incorporated herein by this reference.
Section 4. Covenants of Company.
Company covenants and agrees as follows:
(a) The Company will, at all times, during the term of this
Agreement reserve and keep available, free from preemptive rights, out of the
authorized but unissued Common Stock or its issued Common Stock held in
treasury, or both, the full number of Option Shares deliverable upon exercise of
the Option.
(b) Except as required by Applicable Law, Company will not, in
any capacity, make any public announcement regarding this Agreement or the
Merger without the prior written consent of Parent.
(c) Company will promptly take such steps, if any, as may be
required insofar as the Company 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. The Company will promptly furnish
to the Parent copies of all communications to Company from, or from such Seller
to, the FTC or the Antitrust Division, or any other governmental agency or
authority in respect of this Agreement or the Merger, and shall promptly advise
Parent of any material oral communications with any such agencies.
Section 5. Exercise of Option and Closing Date.
(a) Provided that no preliminary or permanent injunction or
other order against the delivery of Shares covered by the Option has been issued
by any court of competent jurisdiction in the United States and remains in
effect, Parent may exercise the Option, in whole or in part, at any time and
from time to time from the date hereof until the Option Termination Date.
(b) In the event Parent wishes to exercise the Option, it
shall send to Company written notice (the date of which being herein referred to
as the "Notice Date") specifying the total number of Option Shares it intends to
purchase from the Company pursuant to such exercise. If prior notification to or
approval of any governmental regulatory agency is required in connection with
such purchase, Company shall cooperate with Parent in the filing of the required
notice or application for approval and the obtaining of such approval and the
Closing (as defined below) (or Closings, if Parent exercises the Option in part
on multiple occasions) shall occur immediately following such regulatory
approvals (and any mandatory waiting periods). Any exercise of the Option shall
be deemed to occur on the Notice Date relating thereto.
(c) Upon the exercise of the Option by the Parent, the closing
(the "Closing") of the transactions contemplated herein and the delivery of the
Option Shares and the consideration therefor shall occur within three Business
Days or earlier if Parent so elects. If any law or regulation shall not permit
the purchase of the Shares to be consummated as set forth above, the date for
the Closing shall be as soon as practicable following the cessation of such
restriction on consummation, but in any event within two Business Days after
such cessation. Upon the exercise of the Option by the Parent, the date the
Closing occurs is referred to herein as the "Closing Date." The Closing shall
occur on the Closing Date at 10:00 A.M. Phoenix time at the offices of counsel
to the Parent or at such other time and place as the Parent and the Company may
agree.
(d) On the Closing Date, upon the exercise of the Option by
the Parent, the Company shall deliver to the Parent certificates representing
all the Option Shares, and any opinions of counsel or other documents required
by the transfer agent of the Company to permit the transfer of the Option Shares
to the Parent. As consideration for the delivery of each Option Share, Parent
shall pay on the Closing Date the Purchase Consideration, payable by wire
transfer of immediately available funds to the account of the Company (in
accordance with written instructions to be provided by Company).
(e) Upon the giving by Parent to Company of the written notice
of exercise of the Option and the payment of the Parent Consideration to the
Company, Parent shall be deemed to be the holder of record of the Option Shares
of such Company Common Stock fully paid for, notwithstanding that the stock
transfer books of Company shall then be closed or that certificates representing
such Option Shares shall not then be actually delivered to Parent. Company shall
pay all expenses, and any and all
United States federal, state, and local taxes and other charges that may be
payable in connection with the preparation, issuance and delivery of stock
certificates pursuant to this Agreement in the name of Parent or its assignee,
transferee, or designee.
Section 6. Conditions to Obligations of the Parent.
Upon providing notice of Parent's interest in exercising the
Option, the obligations of Parent to consummate the purchase of the Option
Shares are, at the option of Parent, subject to the conditions that on or before
the Closing Date:
(a) The representations and warranties contained in this
Agreement shall be true and correct in all material respects on the date when
made and on and as of the Closing Date as if made on and as of such date and the
Company shall have performed in all material respects its covenants and
obligations contained in this Agreement;
(b) The representations and warranties of Company contained in
the Merger Agreement and of ▇▇▇▇ ▇. ▇▇▇▇▇▇ in the Selling Shareholder's
Agreement shall be true and correct in all material respects on the date when
made and on and as of the Closing Date as if made on and as of such date;
(c) No injunction or other order issued by any federal or
state court preventing the consummation of the Merger or this Agreement shall be
in effect; and
(d) There shall have occurred no Company Material Adverse
Effect.
Section 7. Conditions to Obligations of Company.
The obligations of the Company to consummate the sale of the
Option Shares are, at the option of the Company, subject to the conditions that
on or before the Closing Date:
(a) The representations and warranties of the Parent contained
in this Agreement shall be true and correct in all material respects on the date
when made and at and as of the Closing Date as if then made and the Parent shall
have performed in all material respects its covenants and obligations contained
in this Agreement;
(b) No injunction or other order issued by any federal or
state court preventing the consummation of this Agreement shall be in effect;
and
(c) The Merger Agreement shall not have been terminated by the
Company in accordance with Section 9.1 of the Merger Agreement.
Section 8. Registration Rights.
(a) Demand Registration Rights. Subject to the conditions of
8(c) below, Company shall on no more than two occasions, if requested by Parent,
including Parent and any permitted transferee acquiring at least 10% of the
shares of Company Common Stock represented by the Option on the date hereof
(each, a "Selling Shareholder"), as expeditiously as possible prepare and file a
registration statement under the Securities Act if such registration is
necessary in order to permit the sale or other disposition of any or all Option
Shares or other securities that have been acquired by the Selling Shareholders
upon exercise of the Option in accordance with the intended method of sale or
other disposition stated by the
Selling Shareholder in such request, including without limitation a "shelf"
registration statement under Rule 415 under the Securities Act or any successor
provision, and Company shall use its best efforts to qualify such shares or
other securities for sale under any applicable state securities laws, provided,
however, that Company shall not be required to consent to general jurisdiction
or qualify to do business in any state where it is not otherwise required to so
consent to such jurisdiction or to so qualify to do business.
(b) Additional Registration Rights. If Company at any time
after the exercise of the Option proposes to register any shares of Company
Common Stock under the Securities Act, Company will promptly give written notice
to the Selling Shareholders of its intention to do so and, upon the written
request of any Selling Shareholder given within thirty (30) days after receipt
of any such notice (which request shall specify the number of shares of Company
Common Stock intended to be included in such public offering by the Selling
Shareholder), Company will cause all such shares for which a Selling Shareholder
requests participation in such registration, to be so registered and included in
such public offering, provided, however, that Company may elect to not cause any
such shares to be so registered (i) if such public offering is to be
underwritten and the underwriters in good faith object for valid business
reasons, or (ii) in the case of a registration solely to implement an employee
benefit plan or a registration filed on Form S-4 of the Securities Act or any
successor form. If some but not all the shares of Company Common Stock, with
respect to which Company shall have received requests for registration pursuant
to this Section 8(b), shall be excluded from such registration, Company shall
make appropriate allocation of shares to be registered among the Selling
Shareholders desiring to register their shares pro rata in the proportion that
the number of shares requested to be registered by each such Selling Shareholder
bears to the total number of shares requested to be registered by all such
Selling Shareholders then desiring to have Company Common Stock registered for
sale.
(c) Conditions to Required Registration. Company shall use all
reasonable efforts to cause each registration statement referred to in Section
8(a) above to become effective and to obtain all consents or waivers of other
parties which are required therefor and to keep such registration statement
effective; provided, however, that Company may delay any registration of Option
Shares required pursuant to Section 8(a) above for a period not exceeding ninety
(90) days provided Company shall in good faith determine that any such
registration would adversely affect Company (provided that this right may not be
exercised more than once during any twelve month period).
In addition, Company shall not be required to maintain the
effectiveness of any registration statement after the expiration of six (6)
months from the effective date of such registration statement. Company shall use
all reasonable efforts to make any filings, and take all steps, under all
applicable state securities laws to the extent necessary to permit the sale or
other disposition of the Option Shares so registered in accordance with the
intended method of distribution for such shares; provided, however, that Company
shall not be required to consent to general jurisdiction or qualify to do
business in any state where it is not otherwise required to so consent to such
jurisdiction or to so qualify to do business.
(d) Expenses. Except where applicable state law prohibits such
payments, Company will pay all expenses (including without limitation
registration fees, qualification fees, blue sky fees and expenses (including the
fees and expenses of counsel), legal expenses, including the reasonable fees and
expenses of one counsel to the holders whose Option Shares are being registered,
printing expenses and the costs of special audits or "cold comfort" letters,
expenses of underwriters, excluding discounts and commissions but including
liability insurance if Company so desires or the underwriters so require, and
the reasonable fees and expenses of any necessary special experts) in connection
with each registration pursuant to Section 8(a) or 8(b) above (including the
related offerings and sales by holders of Option Shares) and all other
qualifications, notifications or exemptions pursuant to Section 8(a) or 8(b)
above.
(e) Indemnification. In connection with any registration under
Section 8(a) or 8(b) above, Company hereby indemnifies the Selling Shareholders,
and each underwriter thereof, including each person, if any, who controls such
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, losses, claims, damages and liabilities caused by any untrue, or
alleged untrue, statement of a material fact contained in any registration
statement or prospectus or notification or offering circular (including any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission, or alleged omission, to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such expenses, losses, claims, damages or liabilities of such
indemnified party are caused by any untrue statement or alleged untrue statement
that was included by Company in any such registration statement or prospectus or
notification or offering circular (including any amendments or supplements
thereto) in reliance upon and in conformity with, information furnished in
writing to Company by such indemnified party expressly for use therein, and
Company and each officer, director and controlling person of Company shall be
indemnified by such Selling Shareholders, or by such underwriter, as the case
may be, for all such expenses, losses, claims, damages and liabilities caused by
any untrue, or alleged untrue, statement, that was included by Company in any
such registration statement or prospectus or notification or offering circular
(including any amendments or supplements thereto) in reliance upon, and in
conformity with, information furnished in writing to Company by or on behalf of
such Selling Shareholder or such underwriter, as the case may be, expressly for
such use.
Promptly upon receipt by a party indemnified under this
Section 8(e) of notice of the commencement of any action against such
indemnified party in respect of which indemnity or reimbursement may be sought
against any indemnifying party under this Section 8(e), such indemnified party
shall notify the indemnifying party in writing of the commencement of such
action, but the failure so to notify the indemnifying party shall not relieve it
of any liability which it may otherwise have to any indemnified party under this
Section 8(e) except to the extent the indemnified party is materially prejudiced
thereby. In case notice of commencement of any such action shall be given to the
indemnifying party as above provided, the indemnifying party shall be entitled
to participate in and, to the extent it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and reasonably satisfactory to such
indemnified party. The indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel (other than reasonable costs of investigation)
shall be paid by the indemnified party unless (i) the indemnifying party either
agrees to pay the same, (ii) the indemnifying party fails to assume the defense
of such action with counsel reasonably satisfactory to the indemnified party, or
(iii) the indemnified party has been advised by counsel that one or more legal
defenses may be available to the indemnifying party that may be contrary to the
interest of the indemnified party, in which case the indemnifying party shall be
entitled to assume the defense of such action notwithstanding its obligation to
bear fees and expenses of such counsel. No indemnifying party shall be liable
for any settlement entered into without its consent, which consent may not be
unreasonably withheld.
If the indemnification provided for in this Section 8(e) is
unavailable to a party otherwise entitled to be indemnified in respect of any
expenses, losses, claims, damages or liabilities referred to herein, then the
indemnifying party, in lieu of indemnifying such party otherwise entitled to be
indemnified, shall contribute to the amount paid or payable by such party to be
indemnified as a result of such expenses, losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the relative benefits received
by Company, the Selling Shareholders and the underwriters from the offering of
the securities and also the relative fault of Company, the Selling Shareholders
and the underwriters in connection with the statements or omissions which
resulted in such expenses, losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The amount paid or payable by a
party as a result of the expenses, losses, claims, damages and liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim, provided, however, that in no case shall any
Selling Shareholder be responsible, in the aggregate, for any amount in excess
of the net offering proceeds attributable to its Option Shares included in the
offering. Any obligation by any Selling Shareholder to indemnify shall be
several and not joint with other holders.
In connection with any registration pursuant to Section 8(a)
or 8(b) above, Company and each Selling Shareholder (other than Parent) shall
enter into an agreement containing the indemnification provisions of this
Section 8(e). In the event of an underwritten public offering pursuant to
Section 8(b), the Company and the Selling Shareholders shall enter into an
underwriting agreement containing customary terms and provisions; provided that
the indemnification provisions as they relate to Selling Shareholders shall
contain substantially the same limitations as the provisions set forth herein.
(f) Miscellaneous Reporting. Company shall comply with all
reporting requirements and will do all such other things as may be necessary to
permit the expeditious sale at any time of any Option Shares by the Selling
Shareholder thereof in accordance with and to the extent permitted by any rule
or regulation promulgated by the SEC from time to time, including, without
limitation, Rule 144. Company shall at its expense provide Selling Shareholders
with any information necessary in connection with the completion and filing of
any reports or forms required to be filed by them under the Securities Act or
the Exchange Act, or required pursuant to any state securities laws or the rules
of any stock exchange.
Section 9. No Brokerage Fee.
The parties represent and warrant to each other that, as a
result of the consummation of transactions contemplated by this Agreement, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by (i)
this Agreement; or (ii) the Merger Agreement (except as disclosed therein).
Section 10. Specific Performance.
Parent hereby advises the Company that the transactions
contemplated by this Agreement and the Merger Agreement represent a unique
opportunity for the Parent to acquire the business and operations of 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. Company recognizes that its failure to carry out the terms
of this Agreement could result in financial injury to Parent which would be
substantial, irreparable and not susceptible of measurement. Accordingly,
Company agrees that Parent shall be entitled to (i) require the Company
specifically to perform its obligations under this Agreement and (ii) ▇▇▇ in any
court of competent jurisdiction to obtain such specific performance and to
enjoin any transaction inconsistent therewith to which Company may, directly or
indirectly, have become or propose to become a party. Company 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 11. Termination of Stock Option Agreement and Option.
This Agreement and the Option shall automatically terminate on
the Option Termination Date. Subject to Applicable Laws, the Option Termination
Date shall be the earlier of (i) the Effective Date, if the Merger is
consummated, (ii) the termination date of the Merger Agreement, if the Merger
Agreement is terminated pursuant to Section 9.1(a), 9.1(b)(iii) or 9.1(b)(iv)
(unless the failure to close was due to failure of Company to perform its
obligations under the Merger Agreement, in which case the Option will terminate
pursuant to subparagraph (iii) of this Section 11), or 9.1(c)(iv), 9.1(c)(v)
(unless the failure to qualify as a pooling of interest was due to the actions
or inactions of the Company or Dachis), or 9.1(d)(i), 9.1(d)(ii), 9.1(d)(iii),
9.1(d)(iv) (if the failure to qualify as a tax-free reorganization was due to
the actions or inactions of Parent or Acquisition Sub) of the Merger Agreement,
or (iii) January 31, 1999, unless the Termination Date is extended by the
agreement of the parties to the Merger Agreement, in which case the Option
Termination Date under subsection (iii) shall be one year from the Termination
Date.
Section 12. Miscellaneous.
(a) Payment of Expenses. Each party hereto shall pay its own
expenses incurred in connection with this Agreement.
(b) Amendments; Assignability. This 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 Agreement may assign any of its rights or obligations
under this Agreement without the prior written consent of the other parties;
provided, however, that Parent may assign its rights to purchase the Shares
pursuant to this Agreement to any subsidiary or affiliate of Parent without such
prior written consent. This Agreement does not create or confer any rights in
favor of any third person or entity which is not a party to this Agreement. The
Company, by executing this Agreement, hereby authorizes Ravich, Meyer, Wilson,
Kirkman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. to act as its agent with respect to all matters
in this Agreement relating to the Company, including any amendments or waivers
to or matters required to be taken in connection with, and receipt of notices
under, this Agreement.
(c) Binding Effect. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by, the Parent and the Company and
their respective successors, representatives and permitted assigns, as the case
may be.
(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 courier 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 addresses (or at such other address for a
party as shall be specified by like notice).
(i) If to Parent, to:
Viad Corp
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to :
Travelers Express Company, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Mail Stop 8060
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Company, to:
Game Financial Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Ravich, Meyer, Wilson, Kirkman, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is to be given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
(e) Counterparts. This 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 Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Minnesota applicable to contracts made and to be performed therein. Each Seller
and the Company (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 Minneapolis and State of Minnesota for the purpose
of any suit, action or other proceeding arising out of or based upon this
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
Agreement, or the transactions contemplated hereby, may not be enforced in or by
such court. The Company hereby irrevocably designates and appoints Ravich,
Meyer, Wilson, Kirkman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., who has agreed to accept process
on behalf of the Company, as its authorized agent to receive service of process
on its behalf in connection with any legal matters or proceedings pertaining to
this 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,
the Company also irrevocably consents to the service of process in any such
matter or proceeding by the delivery of copies of such process to the Company as
provided by Section 12(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 Company in any other
jurisdiction. In the event the Company should commence or maintain any action
arising out of or related to this Agreement in a forum other than the state and
federal courts located in the City of Minneapolis and State of Minnesota, the
Parent shall be entitled to request the dismissal of such action, and the
Company stipulates that such action shall be dismissed.
Section 13. 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 Irrevocable Proxy 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 hereof. There are no
restrictions, promises, representations, warranties, covenants, or undertakings
relating to the subject matter hereof, other than those expressly set forth or
referred to herein and therein. This Agreement supersedes all prior agreements
and the understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by Parent and the Company as of the day and year first above written.
VIAD CORP, a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO of
Travelers Express Company, Inc.
GAME FINANCIAL CORPORATION, a
Minnesota corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer and
Chairman of the Board
