Exhibit 10.2
VOTING
AGREEMENT
VOTING
AGREEMENT
THIS VOTING AGREEMENT
is made and entered into as of the
22 nd 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:
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
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
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
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