EXHIBIT 10.1
VOTING AGREEMENT
BY AND AMONG
THE FIRST AMERICAN FINANCIAL CORPORATION,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
AND
▇▇▇▇▇ ▇. ▇▇▇▇
DATED AS OF NOVEMBER 17, 1998
VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 17, 1998 (this "AGREEMENT"), by
and among The First American Financial Corporation, a California corporation
("FAFCO"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and ▇▇▇▇▇ ▇. ▇▇▇▇ ("▇▇▇▇"; each of ▇▇▇▇
and Speizer, a "SHAREHOLDER," and collectively, the "SHAREHOLDERS").
Capitalized terms used, but not otherwise defined, herein shall have the
meanings given them in the Merger Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement FAFCO, Pea Soup Acquisition Corp., a Delaware corporation and
wholly-owned Subsidiary of FAFCO ("FAFCOSUB"), and National Information Group, a
California corporation (the "COMPANY"), have entered into that certain Agreement
and Plan of Merger (the "MERGER AGREEMENT") pursuant to which, at the Effective
Time, FAFCOSUB will merge with and into the Company, with the Company
continuing as the surviving corporation (the "MERGER");
WHEREAS, as a condition to, and in consideration for, FAFCO's
willingness to enter into the Merger Agreement and to consummate the
transactions contemplated thereby, FAFCO has required that the Shareholders
enter into this Agreement;
WHEREAS, each of the Shareholders, owns the number of Company Common
Shares listed opposite his signature below (the "SHARES");
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
31. AGREEMENTS.
(a) VOTING AGREEMENT. Each Shareholder shall, as to himself, with
respect to any meeting of the holders of Company Common Shares (including,
without limitation, the Company Shareholder Meeting), however such meeting is
called and regardless of whether such meeting is a special or annual meeting of
the shareholders of the Company (a "MEETING OF COMPANY SHAREHOLDERS"), or in
connection with any written consent of the shareholders of the Company (a
"WRITTEN CONSENT"), shall take such actions as are necessary (A) to vote or
cause to be voted all of such Shareholder's Shares in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
of the terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance thereof and
hereof (collectively, the "MERGER PROPOSAL") and (B) not to vote or cause or
permit to be voted all of such Shareholder's Shares in favor of or against any
Takeover Proposal or any other action or agreement that would in any manner
impede, frustrate, prevent or nullify any of the transactions contemplated by
the Merger Agreement, including the Merger, or result in a breach of any
covenant, representation or warranty or any other obligation
or agreement of the Company under the Merger Agreement or which would result in
any of the conditions to the Company's or FAFCO's obligations under the Merger
Agreement not being fulfilled.
(b) NO INCONSISTENT ARRANGEMENTS. Each Shareholder hereby covenants
and agrees, severally and not jointly and solely as to himself, that he shall
not (i) transfer (which term shall include, without limitation, any sale, gift,
pledge or other disposition), or consent to any transfer of, any or all of his
Shares, or any interest therein if such transfer would result in the Shareholder
no longer having the power to vote or cause to be voted his Shares on the Merger
Proposal (pursuant to Section 1(a) hereof), (ii) enter into any contract, option
or other agreement or understanding with respect to any such transfer of any or
all of his Shares, or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to his Shares, (iv)
deposit his Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares, other than pursuant to this Agreement,
or (v) take any other action that would in any way restrict, limit or interfere
with the performance of his obligations hereunder or the transactions
contemplated hereby or by the Merger Agreement. Notwithstanding the foregoing,
the parties acknowledge and agree that (a) ▇▇. ▇▇▇▇▇▇▇ has pledged (i) 300,000
Shares to a stock brokerage firm as collateral for a loan by that stock
brokerage firm to ▇▇. ▇▇▇▇▇▇▇ and (ii) 1,224,295 Shares to an escrow agent as
security for payment of a note issued by ▇▇. ▇▇▇▇▇▇▇ in connection with the
acquisition of certain of the Shares in 1996 and (b) ▇▇. ▇▇▇▇ has pledged 3,000
shares to a stock brokerage firm as collateral for a loan by that stock
brokerage firm to ▇▇. ▇▇▇▇. The Shares pledged by ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ are
collectively referred to as the Pledged Shares. Such pledges of the Pledged
Shares include, without limitation, powers of sale of the Pledged Shares in the
event of certain defaults. Notwithstanding anything to the contrary contained
herein, the parties agree that ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇ may cause all or part of
the Pledged Shares to be released from the existing pledges and pledged to
another lender in connection with a refinancing of the existing loan
arrangements; provided, however, that the terms of any pledge of the Pledged
Shares in connection with any such refinancing do not contain more burdensome
and restrictive provisions relating to default.
(c) NO SOLICITATION. Each Shareholder hereby agrees, in his capacity
as a shareholder of the Company, that the Shareholder shall not (and each
Shareholder shall use reasonable efforts to cause his representatives and
agents, including, but not limited to, investment bankers, attorneys and
accountants, not to), directly or indirectly, encourage, solicit, participate in
or initiate discussions or negotiations with, or provide any information to, any
Person (other than FAFCO, any of its affiliates or representatives) concerning
any Takeover Proposal; PROVIDED, HOWEVER, that nothing contained in this Section
1(c) shall restrict any Shareholder from taking any action in his capacity as an
officer and/or director of the Company which is permitted to be taken pursuant
to Section 5.3 of the Merger Agreement.
(d) REASONABLE BEST EFFORTS. Subject to the terms and conditions of
this Agreement, each of the parties hereto agrees to use its or his reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement and the Merger Agreement; PROVIDED, HOWEVER, that nothing
contained in this Section 1(d) shall restrict any Shareholder from taking any
action in his
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or her capacity as an officer and/or director of the Company which is permitted
to be taken pursuant to Section 5.3 of the Merger Agreement.
32. REPRESENTATIONS AND WARRANTIES.
(a) Each Shareholder hereby represents and warrants, severally and
not jointly and solely as to himself, to FAFCO as follows:
(i) OWNERSHIP OF SECURITIES. On the date hereof, the
Shareholder is the beneficial owner of the Shares as set forth opposite his
signature hereto.
Except for the rights granted pledgees and agents of pledgees of the
Pledged Shares in connection with defaults under the loan agreements described
in Section 1 (b) of this Agreement and the exercise of remedies in connection
therewith, the Shareholder has the sole power to vote with respect to the
matters set forth in Section 1 hereof, sole power of disposition, sole power of
conversion, sole power (if any) to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Shares with no limitations, qualifications or restrictions
on such rights, subject to applicable securities laws and the terms of this
Agreement. As of the date hereof, no default exists under the loan arrangements
and pledge arrangements described in Section 1(b) of this Agreement, nor has any
lender or pledgee or agent of any pledgee asserted any claim of default or
attempted to exercise any remedies with respect to Pledged Shares.
(ii) POWER; BINDING AGREEMENT. Each Shareholder has the power
and authority to enter into and perform all of his obligations under this
Agreement. The execution, delivery and performance of this Agreement by
the Shareholder will not violate any agreement to which the Shareholder is
a party including, without limitation, any voting agreement, proxy
arrangement, pledge agreement, shareholders agreement or voting trust.
This Agreement has been duly and validly executed and delivered by the
Shareholder and constitutes a valid and binding agreement of the
Shareholder, enforceable against the Shareholder in accordance with its
terms. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which the Shareholder is a trustee whose
consent is required for the execution and delivery of this Agreement or the
compliance by the Shareholder with the terms hereof.
(iii) NO CONFLICTS. No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is required
for the execution of this Agreement by the Shareholder and the consummation
by the Shareholder of the transactions contemplated hereby, and none of the
execution and delivery of this Agreement by the Shareholder, the
consummation by the Shareholder of the transactions contemplated hereby or
compliance by the Shareholder with any of the provisions hereof shall (A)
conflict with or result in any breach of any organizational documents
applicable to the Shareholder, (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract,
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commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Shareholder is a party or by which the
Shareholder or any of his properties or assets may be bound or (C) violate
any order, writ, injunction, decree, judgment, order, statute, arbitration
award, rule or regulation applicable to the Shareholder or any of his
properties or assets.
(b) FAFCO hereby represents and warrants to the Shareholders, and to
each of them, as follows:
(i) POWER; BINDING AGREEMENT. FAFCO has the corporate power
and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
FAFCO will not violate any material agreement to which FAFCO is a party.
This Agreement has been duly and validly executed and delivered by FAFCO
and constitutes a valid and binding agreement of FAFCO, enforceable against
FAFCO in accordance with its terms.
(ii) NO CONFLICTS. No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is required
for the execution of this Agreement by FAFCO and the consummation by FAFCO
of the transactions contemplated hereby, and none of the execution and
delivery of this Agreement by FAFCO, the consummation by FAFCO of the
transactions contemplated hereby or compliance by FAFCO with any of the
provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to FAFCO, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both)
a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any material note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which FAFCO is a party or by which FAFCO or any of its properties or assets
may be bound or (C) violate any order, writ, injunction, decree, judgment,
order, statute, arbitration award, rule or regulation applicable to FAFCO
or any of its properties or assets.
33. STOP TRANSFER. No Shareholder shall request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of his Shares, unless such transfer is
made in compliance with this Agreement. In the event of any dividend or
distribution, or any change in the capital structure of the Company by reason of
any non-cash dividend, split-up, recapitalization, combination, exchange of
securities or the like, the term "Shares" shall refer to and include each
Shareholder's Shares as well as all such dividends and distributions of
securities and any securities into which or for which any or all such Shares may
be changed, exchanged or converted.
34. RESTRICTION ON SALES OF SECURITIES. From the date that is 30
days prior to the Effective Time, until after such time as results covering at
least 30 days of post-Merger combined operations of the Company and FAFCO have
been published by FAFCO, in the form of a quarterly earnings report, an
effective registration statement filed with the SEC, a report to the SEC on
Forms 10-K, 10-Q or 8-K, or any other public filing or announcement which
includes
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such combined results of operations, no Shareholder will sell, transfer or
otherwise dispose of any of his Shares, any FAFCO Common Shares he receives in
the Merger or any other FAFCO Common Shares or FAFCO preferred shares he holds.
35. TERMINATION. This Agreement and the covenants, representations
and warranties and agreements contained herein or granted pursuant hereto shall
terminate upon the earlier to occur of (i) the termination of the Merger
Agreement in accordance with Section 9 thereof or (ii) the consummation of the
transactions contemplated by the Merger Agreement, provided that the provisions
of Sections 4 and 5 hereof shall survive the consummation of such transactions
in accordance with their terms (but shall not survive the termination of the
Merger Agreement).
36. MISCELLANEOUS.
(a) SPECIFIC PERFORMANCE. Each party hereto recognizes and agrees
that if for any reason any of the provisions of this Agreement are not performed
by any other party in accordance with their specific terms or are otherwise
breached, immediate and irreparable harm or injury would be caused to
non-breaching parties for which money damages would not be an adequate remedy.
Accordingly, the parties agree that, in addition to any other available
remedies, the non-breaching party shall be entitled to seek an injunction
restraining any violation or threatened violation of the provisions of this
Agreement.
(b) SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. Without limiting the
foregoing, with respect to any provision of this Agreement, if it is determined
by a court of competent jurisdiction to be excessive as to duration or scope, it
is the parties' intention that such provision nevertheless be enforced to the
fullest extent which it may be enforced.
(c) ATTORNEYS' FEES. If any action at law or equity, including an
action for declaratory relief, is brought to enforce or interpret any provision
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and expenses from the other party, which fees and expenses shall
be in addition to any other relief which may be awarded.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, REGARDLESS OF THE LAWS
THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
(e) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof.
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(f) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
(which is confirmed), or by registered or certified mail (postage prepaid,
return receipt requested):
if to Speizer, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
In care of National Information Group
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: 650-827-0521
if to ▇▇▇▇, to:
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
if to FAFCO, to:
The First American Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
White & Case LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(h) ASSIGNMENT; BINDING AGREEMENT. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other parties hereto.
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(i) AMENDMENT, MODIFICATION AND WAIVER. This Agreement may not be
amended, modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
(j) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, FAFCO has caused its corporate name to be hereunto
subscribed by its officer thereunto duly authorized and each of Speizer and ▇▇▇▇
has signed this Agreement, all as of the day and year first above written.
THE FIRST AMERICAN FINANCIAL
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Shares: 1,542,909 /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Shares: 3,000 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
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