EXHIBIT 10.6
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REGISTRATION RIGHTS AGREEMENT
BETWEEN
FIDELITY NATIONAL FINANCIAL, INC.
AND
FIDELITY NATIONAL TITLE GROUP, INC.
DATED AS OF ______________, 2005
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TABLE OF CONTENTS
Page
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ARTICLE I. CERTAIN DEFINITIONS..............................................1
Section 1.1. Definitions.................................................1
Section 1.2. Interpretation..............................................4
ARTICLE II. DEMAND REGISTRATION.............................................5
Section 2.1. Demand Registration.........................................5
Section 2.2. Piggyback Registrations.....................................7
Section 2.3. SEC Form S-3................................................9
Section 2.4. Holdback Agreements.........................................9
Section 2.5. Registration Procedures....................................10
Section 2.6. Suspension of Dispositions.................................13
Section 2.7. Registration Expenses......................................14
Section 2.8. Indemnification............................................14
Section 2.9. Transfer of Registration Rights............................17
Section 2.10. Rule 144..................................................17
Section 2.11. Preservation of Rights....................................17
ARTICLE III. TERMINATION...................................................17
Section 3.1. Termination................................................17
ARTICLE IV. MISCELLANEOUS..................................................18
Section 4.1. Notices....................................................18
Section 4.2. Authority..................................................19
Section 4.3. Governing Law..............................................19
Section 4.4. Successors and Assigns.....................................19
Section 4.5. Severability...............................................19
Section 4.6. Remedies...................................................19
Section 4.7. Waivers....................................................19
Section 4.8. Amendment..................................................20
Section 4.9. Counterparts...............................................20
Section 4.10. Entire Agreement..........................................20
Section 4.11. Descriptive Headings......................................20
Section 4.12. Construction..............................................20
Section 4.13. Arbitration...............................................20
Section 4.14. Consent to Jurisdiction...................................21
Section 4.15. Survival..................................................22
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
______________________, 2005, by and between FIDELITY NATIONAL FINANCIAL, INC.,
a Delaware corporation ("FNF"), and FIDELITY NATIONAL TITLE GROUP, INC., a
Delaware corporation (the "Company").
RECITALS
WHEREAS, FNF has undertaken a strategic restructuring plan, pursuant to
which the Company has been formed and will be the holding company for all of
FNF's title insurance subsidiaries and operations; and
WHEREAS, in conjunction with this restructuring plan, the Parties have
entered into a Separation Agreement dated as of _____________, 2005 (the
"Separation Agreement"), pursuant to which certain businesses and subsidiaries
will be transferred and assigned to the Company; and
WHEREAS, in conjunction with the Separation Agreement, the Company will
distribute a minority interest in the capital stock of the Company to the
stockholders of FNF as a dividend (the "Distribution"), pursuant to a
Registration Statement on Form S-1 filed by the Company with the SEC (the
"Initial Registration Statement"); and
WHEREAS, after the Distribution, FNF will continue to hold a majority
of the capital stock of the Company; and
WHEREAS, the Company has agreed to provide FNF with the registration
rights specified in this Agreement following the Distribution with respect to
any shares of Common Stock held by FNF or any other Holder, on the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the covenants and representations
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and FNF hereby agree as
follows:
ARTICLE I. CERTAIN DEFINITIONS
Section 1.1. Definitions. As used herein, the following terms shall
have the following meanings with each such meaning being equally applicable to
the singular or plural form of such word:
(i) "Adverse Effect" has the meaning specified in Section 2.1.
(ii) "Advice" has the meaning specified in Section 2.6.
(iii) "Agreement" has the meaning specified in the
introductory paragraph hereof.
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(iv) "Business Day" means any day other than Saturday, Sunday
or any other day on which banks are authorized or required to be closed in New
York, New York.
(v) "Common Stock" has the meaning set forth in the recitals
hereto.
(vi) "Company" has the meaning specified in the introductory
paragraph hereof.
(vii) "Company Expenses" means all reasonable, out-of-pocket
fees and expenses incident to any Registration including, without limitation,
the Company's performance of or compliance with Article 2, fees and expenses of
compliance with securities or "blue sky" laws, all registration and filing fees,
all fees and expenses associated with filings required to be made with the NASD
(including, if applicable, the reasonable fees and expenses of any "qualified
independent underwriter" as such term is defined in Schedule E of the By-Laws of
the NASD, and of its counsel), as may be required by the rules and regulations
of the NASD, the fees and expenses incurred in connection with any listing or
quotation of the Registrable Shares, fees and expenses of counsel for the
Company and its independent certified public accountants (including the expenses
of any special audit or "cold comfort" letters required by or incident to such
performance), the fees and expenses of any special experts retained by the
Company in connection with such registration, and all commissions related to the
registration or sales of the Registrable Shares, provided, however, that
"Company Expenses" shall not included any Holder Expenses.
(viii) "Demand Registration" has the meaning set forth in
Section 2.1.
(ix) "Demand Request" has the meaning set forth in Section
2.1.
(x) "Demanding Shareholders" has the meaning set forth in
Section 2.1.
(xi) "Distribution" has the meaning set forth in the Recitals.
(xii) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and the rules and regulations promulgated
thereunder.
(xiii) "Excluded Registration" means a registration under the
Securities Act of (i) securities pursuant to one or more Demand Registrations
pursuant to Section 2 hereof, (ii) securities registered on Form S-8 or any
similar successor form, and (iii) securities registered to effect the
acquisition of, or combination with, another Person.
(xiv) "FNF" has the meaning specified in the introductory
paragraph hereof.
(xv) "Holder Expenses" means all costs and expenses arising
from or related to (i) all registration and filing fees, all fees and expenses
associated with filings required to be made with the NASD (including, if
applicable, the reasonable fees and expenses of any "qualified independent
underwriter" as such term is defined in Schedule E of the By-Laws of the NASD,
and of its counsel), as may be required by the rules and regulations of the
NASD; (ii) all underwriting discounts; and (iii) all commissions, and in the
case of each of the preceding clauses, attributable to the sale of the
Registrable Shares held by a Holder.
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(xvi) "Holder" means (i) FNF and (ii) any direct or indirect
transferee of FNF who shall become a party to this Agreement in accordance with
Section 2.9 and has agreed in writing to be bound by the terms of this
Agreement.
(xvii) "Initial Registration Statement" has the meaning set
forth in the Recitals.
(xviii) "Inspectors" has the meaning specified in Section 2.5.
(xix) "Material Transaction" means any material transaction in
which the Company or any of its subsidiaries proposes to engage or is engaged,
including a purchase or sale of assets or securities, financing, merger,
consolidation, tender offer or any other transaction that would require
disclosure pursuant to the Exchange Act, and with respect to which the Board of
Directors of the Company reasonably has determined in good faith that compliance
with this Agreement may reasonably be expected to either materially interfere
with the Company's or such subsidiary's ability to consummate such transaction
in a timely fashion or require the Company of disclose material, non-public
information prior to such time as it would otherwise be required to be
disclosed.
(xx) "NASD" means the National Association of Securities
Dealers, Inc.
(xxi) "Person" means a natural person or any legal, commercial
or governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability company,
trust, business association, group acting in concert, or any person acting in a
representative capacity.
(xxii) "Piggyback Registration" has the meaning specified in
Section 2.2.
(xxiii) "Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
(xxiv) "Records" has the meaning specified in Section 2.5.
(xxv) "Register," "registered" and "registration" shall mean
and refer to a registration effected by preparing and filing a Registration
Statement and taking all other actions that are necessary or appropriate in
connection therewith, and the declaration or ordering of effectiveness of such
Registration Statement by the SEC.
(xxvi) "Registrable Shares" means the Common Stock owned by
the Holders, whether owned on the date hereof or acquired hereafter; provided,
however, that shares of Common Stock that, pursuant to Section 3.1, no longer
have registration rights hereunder shall not be considered Registrable Shares.
(xxvii) "Registration Statement" shall mean any registration
statement of the Company in compliance with Section 5 of the Securities Act and
the rules and regulations thereunder that covers Registrable Securities or other
Shares pursuant to the provisions of this
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Agreement, including, without limitation, the Prospectus, all amendments and
supplements to such registration statement, including all post-effective
amendments, all exhibits and all material incorporated by reference in such
registration statement.
(xxviii) "Registration" means a Demand Registration and/or a
Piggyback Registration.
(xxix) "Requesting Holders" shall mean any Holder(s)
requesting to have its (their) Registrable Shares included in any Demand
Registration or Shelf Registration.
(xxx) "Required Filing Date" has the meaning specified in
Section 2.1.
(xxxi) "SEC" shall mean the Securities and Exchange
Commission.
(xxxii) "Securities Act" shall mean the Securities Act of
1933, as amended from time to time, and the rules and regulations promulgated
thereunder.
(xxxiii) "Seller Affiliates" has the meaning specified in
Section 2.8.
(xxxiv) "Separation Agreement" has the meaning set forth in
the Recitals.
(xxxv) "Shares" shall mean the outstanding Common Stock.
(xxxvi) "Shelf Registration" has the meaning specified in
Section 2.1.
(xxxvii) "Suspension Notice" has the meaning specified in
Section 2.6.
(xxxviii) "Underwritten Registration" or "Underwritten
Offering" shall mean a registration in which common equity securities of the
Company are sold to an underwriter or through an underwriter as agent for
reoffering to the public.
Section 1.2. Interpretation. In this Agreement:
(i) Words in the singular shall include the plural and vice
versa;
(ii) words shall include the common expansions, contractions
and modifications of the root word;
(iii) any reference to a Person shall be construed as
including a reference to its successors, permitted transferees and permitted
assignees in accordance with their respective interests;
(iv) any reference to this Agreement or any other agreement or
document shall be construed as a reference to that agreement or document as it
may have been, or may from time to time be, amended, varied, novated, replaced
or supplemented; and
(v) any reference to a law, decree, statute or other enactment
shall be construed as a reference to such as it may have been, or may from time
to time be, amended or
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re-enacted and any subordinate legislation made or thing done, or may from time
to time be done, under the statute or enactment.
ARTICLE II. DEMAND REGISTRATION
Section 2.1. Demand Registration.
(i) Request for Registration.
(a) Commencing on, any Holder or Holders of
Registrable Shares shall have the right to require the Company to file
a registration statement on Form ▇-▇, ▇-▇ or S-3, or any similar or
successor to such forms under the Securities Act, for a public offering
of all or part of its or their Registrable Shares (a "Demand
Registration"), by delivering to the Company written notice stating
that such right is being exercised, naming, if applicable, the Holders
whose Registrable Shares are to be included in such registration
(collectively, the "Demanding Shareholders"), specifying the number of
each such Demanding Shareholder's Registrable Shares to be included in
such registration and, subject to Section 2.1(iii) hereof, describing
the intended method of distribution thereof (a "Demand Request"). The
Initial Registration Statement shall not constitute a Demand
Registration for any purpose under this Agreement.
(b) Each Demand Request shall specify the
aggregate number of Registrable Shares proposed to be sold. Subject to
Section 2.1(vi), the Company shall file the registration statement in
respect of a Demand Registration as soon as practicable and, in any
event, within forty-five (45) days after receiving a Demand Request
(the "Required Filing Date") and shall use reasonable best efforts to
cause the same to be declared effective by the SEC as promptly as
practicable after such filing; provided, however, that:
(A) the Company shall not be obligated
to effect a Demand Registration pursuant to Section 2.1(i)(a)
within 90 days after the effective date of a previous
Demand Registration, other than a Shelf Registration pursuant
to this Article 2;
(B) the Company shall not be obligated
to effect a Demand Registration pursuant to Section 2.1(i)(a)
unless the Demand Request is for a number of Registrable
Shares with a market value that is equal to at least US$25
million as of the date of such Demand Request; and
(C) the Company shall not be obligated
to effect pursuant to Section 2.1(i)(a) more than two (2)
Demand Registrations during any rolling twelve (12) months
period following the date hereof.
(ii) Shelf Registration. With respect to any Demand
Registration, the Requesting Holders may request the Company to effect a
registration of the Common Stock
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under a registration statement pursuant to Rule 415 under the Securities Act (or
any successor rule) (a "Shelf Registration").
(iii) Selection of Underwriters. At the request of a majority
of the Requesting Holders, the offering of Registrable Shares pursuant to a
Demand Registration shall be in the form of a "firm commitment" Underwritten
Offering. The Holders of a majority of the Registrable Shares to be registered
in a Demand Registration shall select the investment banking firm or firms to
manage the Underwritten Offering, provided, however, that such selection shall
be subject to the consent of the Company, which consent shall not be
unreasonably withheld or delayed. No Holder may participate in any registration
pursuant to Section 2.1(i) unless such Holder (x) agrees to sell such Holder's
Registrable Shares on the basis provided in any underwriting arrangements
described above and (y) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements; provided, however,
that no such Holder shall be required to make any representations or warranties
in connection with any such registration other than representations and
warranties as to (i) such Holder's ownership of its or its Registrable Shares to
be transferred free and clear of all liens, claims, and encumbrances, (ii) such
Holder's power and authority to effect such transfer, and (iii) such matters
pertaining to compliance with securities laws as may be reasonably requested;
provided, further, however, that the obligation of such Holder to indemnify
pursuant to any such underwriting arrangements shall be several, not joint and
several, among such Holders selling Registrable Shares, and the liability of
each such Holder will be in proportion thereto, and provided, further, however,
that such liability will be limited to the net amount received by such Holder
from the sale of its Registrable Shares pursuant to such registration.
(iv) Rights of Nonrequesting Holders. Upon receipt of any
Demand Request, the Company shall promptly (but in any event within ten (10)
days) give written notice of such proposed Demand Registration to all other
Holders, who shall have the right, exercisable by written notice to the Company
within twenty (20) days of their receipt of the Company's notice, to elect to
include in such Demand Registration such portion of their Registrable Shares as
they may request. All Holders requesting to have their Registrable Shares
included in a Demand Registration in accordance with the preceding sentence
shall be deemed to be "Requesting Holders" for purposes of this Section 2.1.
(v) Priority on Demand Registrations. No securities to be sold
for the account of any Person (including the Company) other than a Requesting
Holder shall be included in a Demand Registration unless the managing
underwriter or underwriters shall advise the Requesting Holders in writing that
the inclusion of such securities will not adversely affect the price, timing or
distribution of the offering or otherwise adversely affect its success (an
"Adverse Effect"). Furthermore, if the managing underwriter or underwriters
shall advise the Requesting Holders that, even after exclusion of all securities
of other Persons pursuant to the immediately preceding sentence, the amount of
Registrable Shares proposed to be included in such Demand Registration by
Requesting Holders is sufficiently large to cause an Adverse Effect, the
Registrable Shares of the Requesting Holders to be included in such Demand
Registration shall equal the number of shares which the Requesting Holders are
so advised can be sold in such offering without an Adverse Effect and such
shares shall be allocated pro rata among the
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Requesting Holders on the basis of the number of Registrable Shares requested to
be included in such registration by each such Requesting Holder.
(vi) Deferral of Filing. The Company may defer the filing (but
not the preparation) of a registration statement required by this Section 2.1
until a date not later than ninety (90) days after the Required Filing Date if
(i) a Material Transaction exists at the time of such Required Filing Date; (ii)
at the time the Company receives the Demand Request, the Company or any of its
Subsidiaries are engaged in confidential negotiations or other confidential
business activities, disclosure of which would be required in such registration
statement (but would not be required if such registration statement were not
filed), and the Board of Directors of the Company or a committee of the Board of
Directors of the Company determines in good faith that such disclosure would be
materially detrimental to the Company and its stockholders, or (iii) prior to
receiving the Demand Request, the Company had determined to effect a registered
underwritten public offering of the Company's securities for the Company's
account and the Company had taken substantial steps (including, but not limited
to, selecting a managing underwriter for such offering) and is proceeding with
reasonable diligence to effect such offering. A deferral of the filing of a
registration statement pursuant to this Section 2.1(vi) shall be lifted, and the
requested registration statement shall be filed forthwith, if, in the case of a
deferral pursuant to clause (ii) of the preceding sentence, the negotiations or
other activities are disclosed or terminated, or, in the case of a deferral
pursuant to clause (iii) of the preceding sentence, the proposed registration
for the Company's account is abandoned. In order to defer the filing of a
registration statement pursuant to this Section 2.1(vi), the Company shall
promptly (but in any event within ten (10) days), upon determining to seek such
deferral, deliver to each Requesting Holder a certificate signed by an executive
officer of the Company stating that the Company is deferring such filing
pursuant to this Section 2.1(vi) and a general statement of the reason for such
deferral and an approximation of the anticipated delay. Within twenty (20) days
after receiving such certificate, the holders of a majority of the Registrable
Shares held by the Requesting Holders and for which registration was previously
requested may withdraw such Demand Request by giving notice to the Company; if
withdrawn, the Demand Request shall be deemed not to have been made for all
purposes of this Agreement. The Company may defer the filing of a particular
registration statement pursuant to this Section 2.1(vi)(a) once in any twelve
(12) month rolling period.
Section 2.2. Piggyback Registrations.
(i) Right to Piggyback. Each time the Company proposes to
register any of its equity securities (other than pursuant to an Excluded
Registration) under the Securities Act for sale to the public (whether for the
account of the Company or the account of any securityholder of the Company) (a
"Piggyback Registration"), the Company shall give prompt written notice to each
Holder of Registrable Shares (which notice shall be given not less than twenty
(20) days prior to the anticipated filing date of the Company's registration
statement), which notice shall offer each such Holder the opportunity to include
any or all of its Registrable Shares in such registration statement, subject to
the limitations contained in Section 2.2(ii) hereof. Each Holder who desires to
have its Registrable Shares included in such registration statement shall so
advise the Company in writing (stating the number of shares desired to be
registered) within ten (10) days after the date of such notice from the Company.
Any Holder shall have the right to withdraw such Holder's request for inclusion
of such Holder's Registrable
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Shares in any registration statement pursuant to this Section 2.2(i) by giving
written notice to the Company of such withdrawal. Subject to Section 2.2(ii)
below, the Company shall include in such registration statement all such
Registrable Shares so requested to be included therein; provided, however, that
the Company may at any time withdraw or cease proceeding with any such
registration if it shall at the same time withdraw or cease proceeding with the
registration of all other equity securities originally proposed to be
registered.
(ii) Priority on Piggyback Registrations.
(a) If a Piggyback Registration is an Underwritten
Offering and was initiated by the Company, and if the managing
underwriter advises the Company that the inclusion of Registrable
Shares requested to be included in the Registration Statement would
cause an Adverse Effect, the Company shall include in such registration
statement (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Shares requested to be included in such
registration, pro rata among the Holders of such Registrable Shares on
the basis of the number of Registrable Shares owned by each such
Holder, and (iii) third, any other securities requested to be included
in such registration. If as a result of the provisions of this Section
2.2(ii)(a) any Holder shall not be entitled to include all Registrable
Shares in a registration that such Holder has requested to be so
included, such Holder may withdraw such Holder's request to include
Registrable Shares in such registration statement.
(b) If a Piggyback Registration is an Underwritten
Offering and was initiated by a security holder of the Company, and if
the managing underwriter advises the Company that the inclusion of
Registrable Shares requested to be included in the Registration
Statement would cause an Adverse Effect, the Company shall include in
such registration statement (i) first, the securities requested to be
included therein by the security holders requesting such registration
and the Registrable Shares requested to be included in such
registration, pro rata among the holders of such securities on the
basis of the number of securities owned by each such holder, and (ii)
second, any other securities requested to be included in such
registration (including securities to be sold for the account of the
Company). If as a result of the provisions of this Section 2.2(ii)(b)
any Holder shall not be entitled to include all Registrable Shares in a
registration that such Holder has requested to be so included, such
Holder may withdraw such Holder's request to include Registrable Shares
in such registration statement.
(c) No Holder may participate in any registration
statement in respect of a Piggyback Registration hereunder unless such
Holder (x) agrees to sell such Holder's Registrable Shares on the basis
provided in any underwriting arrangements approved by the Company and
(y) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents, each in
customary form, reasonably required under the terms of such
underwriting arrangements; provided, however, that no such Holder shall
be required to make any representations or warranties in connection
with any such registration other than representations and warranties as
to (i) such Holder's ownership of its Registrable Shares to be sold or
transferred free and clear of all liens, claims, and encumbrances, (ii)
such Holder's power and authority to effect such transfer, and (iii)
such matters pertaining to compliance with securities laws
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as may be reasonably requested; provided, further, however, that the
obligation of such Holder to indemnify pursuant to any such
underwriting arrangements shall be several, not joint and several,
among such Holders selling Registrable Shares, and the liability of
each such Holder will be in proportion to, and provided, further, that
such liability will be limited to, the net amount received by such
Holder from the sale of its Registrable Shares pursuant to such
registration.
(iii) Selection of Underwriters. If any Piggyback Registration
is an Underwritten Offering and any Registrable Shares will be included in such
offering, then the investment banking firm(s) selected to manage the offering
shall be selected with the prior consent of the Holders of a majority of the
Registrable Shares to be included in such Piggyback Registration, which consent
shall not be unreasonably withheld, provided that if FNF or Affiliates thereof
are included among the Holders whose Registrable Shares will be included in the
Piggyback Registration, then such selection shall also be with the prior consent
of FNF (which consent shall not be unreasonably withheld).
Section 2.3. SEC Form S-3. The Company shall use its reasonable best
efforts to cause Demand Registrations to be registered on Form S-3 (or any
successor form) once the Company becomes eligible to use Form S-3, and if the
Company is not then eligible under the Securities Act to use Form S-3, Demand
Registrations shall be registered on the form for which the Company then
qualifies. The Company shall use its reasonable best efforts to become eligible
to use Form S-3 and, after becoming eligible to use Form S-3, shall use its
reasonable best efforts to remain so eligible.
Section 2.4. Holdback Agreements.
(i) The Company shall not effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any registration
statement in connection with a Demand Registration (other than a Shelf
Registration) or a Piggyback Registration, except pursuant to registrations on
Form S-4 or Form S-8 or any successor form or unless the underwriters managing
any such public offering otherwise agree.
(ii) If any Holders of Registrable Shares notify the Company
in writing that they intend to effect an underwritten sale of Common Stock
registered pursuant to a Shelf Registration pursuant to Article 2 hereof, the
Company shall not effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for its equity securities, during the seven days prior to and during the 90-day
period beginning on the date such notice is received, except pursuant to
registrations on Form S-4 or Form S-8 or any successor form or unless the
underwriters managing any such public offering otherwise agree.
(iii) Each Holder agrees, in the event of an Underwritten
Offering by the Company (whether for the account of the Company or otherwise),
not to offer, sell, contract to sell or otherwise dispose of any Registrable
Securities, or any securities convertible into or exchangeable or exercisable
for such securities, including any sale pursuant to Rule 144 under
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the Securities Act (except as part of such Underwritten Offering), during the 7
days prior to, and during the 90-day period (or such lesser period as the lead
or managing underwriters may require) beginning on, the effective date of the
registration statement for such Underwritten Offering (or, in the case of an
offering pursuant to an effective shelf registration statement pursuant to Rule
415, the pricing date for such Underwritten Offering).
Section 2.5. Registration Procedures. Whenever any Holder has requested
that any Registrable Shares be registered pursuant to this Agreement, the
Company will use its reasonable best efforts to effect the registration and the
sale of such Registrable Shares in accordance with the intended method of
disposition thereof as promptly as is practicable, and pursuant thereto the
Company will as expeditiously as possible:
(i) prepare and file with the SEC, pursuant to Section
2.1(i)(b) with respect to any Demand Registration, a registration statement on
any appropriate form under the Securities Act with respect to such Registrable
Shares and use its reasonable best efforts to cause such registration statement
to become effective, provided that as far in advance as practicable before
filing such registration statement or any amendment thereto, the Company will
furnish to the selling Holders copies of reasonably complete drafts of all such
documents prepared to be filed (including exhibits), and any such Holder shall
have the opportunity to object to any information contained therein and the
Company will make corrections reasonably requested by such Holder with respect
to such information prior to filing any such registration statement or
amendment;
(ii) except in the case of a Shelf Registration, prepare and
file with the SEC such amendments, post-effective amendments, and supplements to
such registration statement and the Prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not less than one hundred eighty (180) days (or such lesser period as is
necessary for the underwriters in an Underwritten Offering to sell unsold
allotments) and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(iii) in the case of a Shelf Registration, prepare and file
with the SEC such amendments and supplements to such registration statement and
the Prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Shares subject
thereto for a period ending on the earlier of (x) 24 months after the effective
date of such registration statement and (y) the date on which all the
Registrable Shares subject thereto have been sold pursuant to such registration
statement;
(iv) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies of such
registration statement, each amendment and supplement thereto, the Prospectus
included in such registration statement (including each preliminary Prospectus),
any documents incorporated by reference therein and such other documents as such
seller or underwriters may reasonably request in order to facilitate the
disposition of the Registrable Shares owned by such seller or the sale of such
securities by such underwriters (it being understood that, subject to Section
2.6 and the requirements of the Securities Act and applicable state securities
laws, the Company consents to the use of the
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Prospectus and any amendment or supplement thereto by each seller and the
underwriters in connection with the offering and sale of the Registrable Shares
covered by the registration statement of which such Prospectus, amendment or
supplement is a part);
(v) use its reasonable best efforts to register or
qualify such Registrable Shares under such other securities or blue sky laws of
such jurisdictions as the managing underwriter reasonably requests (or, in the
event the registration statement does not relate to an Underwritten Offering, as
the holders of a majority of such Registrable Shares may reasonably request);
use its reasonable best efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and
things which may be reasonably necessary or advisable to enable each seller to
consummate the disposition of the Registrable Shares owned by such seller in
such jurisdictions (provided, however, that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (B) consent to
general service of process in any such jurisdiction);
(vi) promptly notify each seller and each underwriter
and (if requested by any such Person) confirm such notice in writing (A) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of the issuance by any state
securities or other regulatory authority of any order suspending the
qualification or exemption from qualification of any of the Registrable Shares
under state securities or "blue sky" laws or the initiation of any proceedings
for that purpose, and (C) of the happening of any event which makes any
statement made in a registration statement or related Prospectus untrue or which
requires the making of any changes in such registration statement, Prospectus or
documents so that they will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and, as promptly as practicable
thereafter, prepare and file with the SEC and furnish a supplement or amendment
to such Prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such Prospectus will not contain any untrue statement of a
material fact or omit a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(vii) permit any selling Holder, which in such
Holder's sole and exclusive judgment, might reasonably be deemed to be an
underwriter or a controlling Person of the Company, to participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of such Holder and its counsel should be included;
(viii) make reasonably available members of
management of the Company, as selected by the Holders of a majority of the
Registrable Shares included in such registration, for assistance in the selling
effort relating to the Registrable Shares covered by such registration,
including, but not limited to, the participation of such members of the
Company's management in road show presentations;
11
(ix) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC, including the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder, and make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act no later than thirty (30) days after the end of the twelve (12) month period
beginning with the first day of the Company's first fiscal quarter commencing
after the effective date of a registration statement, which earnings statement
shall cover said twelve (12) month period, and which requirement will be deemed
to be satisfied if the Company timely files complete and accurate information on
Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule
158 under the Securities Act;
(x) if requested by the managing underwriter or any
seller promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriter or any seller reasonably
requests to be included therein, including, without limitation, with respect to
the Registrable Shares being sold by such seller, the purchase price being paid
therefor by the underwriters and with respect to any other terms of the
Underwritten Offering of the Registrable Shares to be sold in such offering, and
promptly make all required filings of such Prospectus supplement or
post-effective amendment;
(xi) as promptly as practicable after filing with the
SEC of any document which is incorporated by reference into a registration
statement (in the form in which it was incorporated), deliver a copy of each
such document to each seller;
(xii) cooperate with the sellers and the managing
underwriter to facilitate the timely preparation and delivery of certificates
(which shall not bear any restrictive legends unless required under applicable
law) representing securities sold under any registration statement, and enable
such securities to be in such denominations and registered in such names as the
managing underwriter or such sellers may request and keep available and make
available to the Company's transfer agent prior to the effectiveness of such
registration statement a supply of such certificates;
(xiii) promptly make available for inspection by any
seller, any underwriter participating in any disposition pursuant to any
registration statement, and any attorney, accountant or other agent or
representative retained by any such seller or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records"), as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; provided, however, that, unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, the Company
shall not be required to provide any information under this subparagraph (x) if
(A) the Company believes, after consultation with counsel for the Company, that
to do so would cause the Company to forfeit an attorney-client privilege that
was applicable to such information or (B) if either (1) the Company has
requested and been granted from the SEC confidential treatment of such
information contained in any filing with the SEC or documents provided
supplementally or otherwise or (2) the Company reasonably determines in
12
good faith that such Records are confidential and so notifies the Inspectors in
writing, unless prior to furnishing any such information with respect to clause
(B), such Holder of Registrable Shares requesting such information agrees to
enter into a confidentiality agreement in customary form and subject to
customary exceptions; and provided, further, that each Holder of Registrable
Shares agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action and to
prevent disclosure of the Records deemed confidential;
(xiv) furnish to each seller and underwriter a signed
counterpart of (A) an opinion or opinions of counsel to the Company, and (B) a
comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
sellers or managing underwriter reasonably requests;
(xv) cause the Registrable Shares included in any
registration statement to be (A) listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed, or (B) quoted on
the NASD Automated Quotation System or the Nasdaq National Market if similar
securities issued by the Company are quoted thereon;
(xvi) provide a transfer agent and registrar for all
Registrable Securities registered hereunder;
(xvii) cooperate with each seller and each
underwriter participating in the disposition of such Registrable Shares and
their respective counsel in connection with any filings required to be made with
the NASD;
(xviii) during the period when the Prospectus is
required to be delivered under the Securities Act, promptly file all documents
required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act;
(xix) notify each seller of Registrable Shares
promptly of any request by the SEC for the amending or supplementing of such
registration statement or Prospectus or for additional information;
(xx) enter into such agreements (including
underwriting agreements in the managing underwriter's customary form) as are
customary in connection with an Underwritten Registration; and
(xxi) advise each seller of such Registrable Shares,
promptly after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use its reasonable best efforts to prevent the
issuance of any stop order or to obtain its withdrawal at the earliest possible
moment if such stop order should be issued.
Section 2.6. Suspension of Dispositions. Each Holder agrees by
acquisition of any Registrable Shares that, upon receipt of any notice (a
"Suspension Notice") from the Company of the happening of any event of the kind
described in Section 2.5(vi)(C), such Holder will
13
forthwith discontinue disposition of Registrable Shares until such Holder's
receipt of the copies of the supplemented or amended Prospectus, or until it is
advised in writing (the "Advice") by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the Prospectus, and, if so
directed by the Company, such Holder will deliver to the Company all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Shares current at the time of receipt of
such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of registration statements set forth in
Sections 2.5(ii) and 2.5(iii) shall be extended by the number of days during the
period from and including the date of the giving of the Suspension Notice to and
including the date when each seller of Registrable Shares covered by such
registration statement shall have received the copies of the supplemented or
amended Prospectus or the Advice. The Company shall use its reasonable best
efforts and take such actions as are reasonably necessary to render the Advice
as promptly as practicable.
Section 2.7. Registration Expenses. All Company Expenses incident to
any Registration shall be borne by the Company, (unless paid by a security
holder that is not a Holder for whose account the registration is being
effected). All Holder Expenses incident to any Registration shall be borne by
the Holders pro rata on the basis of the number of shares so registered whether
or not any registration statement becomes effective. The fees and expenses of
any counsel, accountants, or other Persons retained or employed by any Holder
shall borne solely by such Holder.
Section 2.8. Indemnification.
(i) The Company agrees to indemnify and reimburse, to
the fullest extent permitted by law, each seller of Registrable Shares, and each
of its employees, advisors, agents, representatives, partners, officers, and
directors and each Person who controls such seller (within the meaning of the
Securities Act or the Exchange Act) and any agent or investment advisor thereof
(collectively, the "Seller Affiliates") (A) against any and all losses, claims,
damages, liabilities, and expenses, joint or several (including, without
limitation, attorneys' fees and disbursements except as limited by Section
2.8(iii)) based upon, arising out of, related to or resulting from any untrue or
alleged untrue statement of a material fact contained in any registration
statement, Prospectus, or preliminary Prospectus or any amendment thereof or
supplement thereto, or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (B) against any and all loss, liability, claim, damage, and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from any such untrue statement or
omission or alleged untrue statement or omission, and (C) against any and all
costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing, or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, or such violation of the Securities Act or
Exchange Act, to the extent that any such expense or cost is not paid under
subparagraph (A) or (B) above; except insofar as any such statements are
14
made in reliance upon and in strict conformity with information furnished in
writing to the Company by such seller or any Seller Affiliate for use therein or
arise from such seller's or any Seller Affiliate's failure to deliver a copy of
the registration statement or Prospectus or any amendments or supplements
thereto after the Company has furnished such seller or Seller Affiliate with a
sufficient number of copies of the same. The reimbursements required by this
Section 2.8(i) will be made by periodic payments during the course of the
investigation or defense, as and when bills are received or expenses incurred.
(ii) In connection with any registration statement in
which a seller of Registrable Shares is participating, each such seller will
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or Prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and each of its employees, advisors, agents,
representatives, partners, officers and directors and each Person who controls
the Company (within the meaning of the Securities Act or the Exchange Act) and
any agent or investment advisor thereof against any and all losses, claims,
damages, liabilities, and expenses (including, without limitation, reasonable
attorneys' fees and disbursements except as limited by Section 2.8(iii))
resulting from any untrue statement or alleged untrue statement of a material
fact contained in the registration statement, Prospectus, or any preliminary
Prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission is
contained in any information or affidavit so furnished in writing by such seller
or any of its Seller Affiliates specifically for inclusion in the registration
statement; provided that the obligation to indemnify will be several, not joint
and several, among such sellers of Registrable Shares, and the liability of each
such seller of Registrable Shares will be in proportion to, and will be limited
to, the net amount received by such seller from the sale of Registrable Shares
pursuant to such registration statement; provided, however, that such seller of
Registrable Shares shall not be liable in any such case to the extent that prior
to the filing of any such registration statement or Prospectus or amendment
thereof or supplement thereto, such seller has furnished in writing to the
Company information expressly for use in such registration statement or
Prospectus or any amendment thereof or supplement thereto which corrected or
made not misleading information previously furnished to the Company.
(iii) Any Person entitled to indemnification
hereunder will (A) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification (provided that the failure
to give such notice shall not limit the rights of such Person) and (B) unless in
such indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; provided, however, that any
Person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless (X)
the indemnifying party has agreed to pay such fees or expenses, or (Y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any
15
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). If such defense is assumed by the
indemnifying party pursuant to the provisions hereof, such indemnifying party
shall not settle or otherwise compromise the applicable claim unless (1) such
settlement or compromise contains a full and unconditional release of the
indemnified party or (2) the indemnified party otherwise consents in writing. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party, a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the reasonable fees and
disbursements of such additional counsel or counsels.
(iv) Each party hereto agrees that, if for any reason
the indemnification provisions contemplated by Section 2.8(i) or Section 2.8(ii)
are unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities, or expenses (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, liabilities, or expenses (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the actions
which resulted in the losses, claims, damages, liabilities or expenses as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 2.8(iv)
were determined by pro rata allocation (even if the Holders or any underwriters
or all of them were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in this Section 2.8(iv). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities, or
expenses (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or, except as provided in
Section 2.8(iii), defending any such action or claim. Notwithstanding the
provisions of this Section 2.8(iv), no Holder shall be required to contribute an
amount greater than the dollar amount by which the net proceeds received by such
Holder with respect to the sale of any Registrable Shares exceeds the amount of
damages which such Holder has otherwise been required to pay by reason of any
and all untrue or alleged untrue statements of material fact or omissions or
alleged omissions of material fact made in any registration statement,
Prospectus or preliminary Prospectus or any amendment thereof or supplement
thereto related to such sale of Registrable Shares. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations in this
Section 2.8(iv) to contribute shall be several in proportion to the amount of
Registrable Shares registered by them and not joint. If indemnification is
available under this Section 2.8, the indemnifying parties shall indemnify each
indemnified party to the full extent provided in Section 2.8(i) and Section
2.8(ii) without regard
16
to the relative fault of said indemnifying party or indemnified party or any
other equitable consideration provided for in this Section 2.8(iv) subject, in
the case of the Holders, to the limited dollar amounts set forth in Section
2.8(ii).
(v) The indemnification and contribution provided for
under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and will survive the
transfer of securities.
Section 2.9. Transfer of Registration Rights. The rights of each Holder
under this Agreement may be assigned to any direct or indirect transferee of a
Holder who agrees in writing to be subject to and bound by all the terms and
conditions of this Agreement.
Section 2.10. Rule 144. The Company will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder (or, if the Company is not required to
file such reports, will, upon the request of the Holders, make publicly
available other information) and will take such further action as the Holders
may reasonably request, all to the extent required from time to time to enable
the Holders to sell Common Stock without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time or (ii) any
similar rule or regulation hereafter adopted by the SEC. Upon the reasonable
request of any Holder, the Company will deliver to such parties a written
statement as to whether it has complied with such requirements and will, at its
expense, forthwith upon the request of any such Holder, deliver to such Holder a
certificate, signed by the Company's principal financial officer, stating (a)
the Company's name, address and telephone number (including area code), (b) the
Company's Internal Revenue Service identification number, (c) the Company's SEC
file number, (d) the number of shares of each class of capital stock outstanding
as shown by the most recent report or statement published by the Company, and
(e) whether the Company has filed the reports required to be filed under the
Exchange Act for a period of at least ninety (90) days prior to the date of such
certificate and in addition has filed the most recent annual report required to
be filed thereunder.
Section 2.11. Preservation of Rights. The Company will not (i) grant
any registration rights to third parties which are more favorable than or
inconsistent with the rights granted hereunder or (ii) enter into any agreement,
take any action, or permit any change to occur, with respect to its securities
that violates or subordinates the rights expressly granted to the Holders in
this Agreement.
ARTICLE III. TERMINATION
Section 3.1. Termination. The Holders may exercise the registration
rights granted hereunder in such manner and proportions as they shall agree
among themselves. The registration rights hereunder shall cease to apply to any
particular Registrable Share when: (a) a registration statement with respect to
the sale of such shares of Common Stock shall have become effective under the
Securities Act and such shares of Common Stock shall have been disposed of in
accordance with such registration statement; (b) such shares of Common Stock
shall have been sold to the public pursuant to Rule 144 under the Securities Act
(or any
17
successor provision); (c) such shares of Common Stock shall have been otherwise
transferred, new certificates for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration or qualification of them
under the Securities Act or any similar state law then in force; (d) such shares
shall have ceased to be outstanding or (e) in the case of Registrable Shares
held by a Holder that is not FNF or any Affiliate thereof, when such Registrable
Shares are eligible for sale pursuant to Rule 144(k) under the Securities Act
(or any successor provision). The Company shall promptly upon the request of any
Holder furnish to such Holder evidence of the number of Registrable Shares then
outstanding.
ARTICLE IV. MISCELLANEOUS
Section 4.1. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by overnight courier service, by facsimile with receipt
confirmed (followed by delivery of an original via overnight courier service) or
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 in a notice given in accordance with this Section
4.1:
If to the Company:
Fidelity National Title Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
If to FNF:
Fidelity National Financial, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
If to any other Holder, the address indicated for such Holder in the Company's
stock transfer records with copies, so long as FNF owns any Registrable Shares,
to FNF as provided above. Any notice or communication hereunder shall be deemed
to have been given or made as of the date so delivered if personally delivered;
when answered back, if sent via facsimile; when receipt is confirmed by the
sender's equipment; and five (5) calendar days after mailing if sent by
registered or certified mail (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
18
Section 4.2. Authority. Each of the parties hereto represents to the
other that (i) it has the corporate power and authority to execute, deliver and
perform this Agreement, (ii) the execution, delivery and performance of this
Agreement by it has been duly authorized by all necessary corporate action and
no such further action is required, (iii) it has duly and validly executed and
delivered this Agreement, and (iv) this Agreement is a legal, valid and binding
obligation, enforceable against it in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and general equity principles.
Section 4.3. Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of Florida
without application of the conflict of laws provisions thereof.
Section 4.4. Successors and Assigns. Except as otherwise expressly
provided herein, this Agreement shall be binding upon and benefit the Company,
each Holder, and their respective successors and assigns.
Section 4.5. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced under any Law or as
a matter of public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties to this Agreement shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated by this Agreement be consummated as originally contemplated to the
greatest extent possible.
Section 4.6. Remedies. Each party hereto shall be entitled to enforce
its rights under this Agreement specifically to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in its favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that each party may in its sole discretion apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
Section 4.7. Waivers. The observance of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) by the party entitled to enforce such term, but such waiver
shall be effective only if it is in a writing signed by the party against whom
the existence of such waiver is asserted. Unless otherwise expressly provided in
this Agreement, no delay or omission on the part of any party in exercising any
right or privilege under this Agreement shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any right or privilege under this
Agreement operate as a waiver of any other right or privilege under this
Agreement nor shall any single or partial exercise of any right or privilege
preclude any other or further exercise thereof or the exercise of any other
right or privilege under this Agreement. No failure by either party to take any
action or assert any right or privilege hereunder shall be deemed to be a waiver
of such right or privilege in the event of the
19
continuation or repetition of the circumstances giving rise to such right unless
expressly waived in writing by the party against whom the existence of such
waiver is asserted.
Section 4.8. Amendment. This Agreement may not be amended or modified
in any respect except by a written agreement signed by the Company, FNF (so long
as FNF owns any Common Stock) and the Holders of a majority of the then
outstanding Registrable Shares.
Section 4.9. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties to each such agreement in
separate counterparts, each of which when executed shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile shall be as effective as delivery of a manually executed
counterpart of any such Agreement.
Section 4.10. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
Section 4.11. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 4.12. Construction. Where specific language is used to clarify
by example a general statement contained herein, such specific language shall
not be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
Section 4.13. Arbitration. All disputes arising under this Agreement
shall be resolved by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. Expedited rules shall apply
regardless of the amount at issue. Arbitration proceedings hereunder may be
initiated by the any party making a written request to the American Arbitration
Association, together with any appropriate filing fee, at the office of the
American Arbitration Association in Orlando, Florida. All arbitration
proceedings shall be held in Jacksonville, Florida in a location to be specified
by the Arbitrators (or any place agreed to by the parties and the Arbitrators).
If the amount at issue is less than US$100,000.00, then arbitration shall be by
one Arbitrator experienced in the matters at issue and jointly selected by the
parties (provided, that, if the parties cannot agree on an Arbitrator within
fifteen (15) days after notice of commencement of arbitration, the American
Arbitration Association shall, upon the request of any party to the dispute or
difference, appoint the Arbitrator). If the amount at issue is US$100,000.00 or
more, then arbitration shall be by a panel of three qualified Arbitrators
experienced in the matters at issue. Each party shall choose one Arbitrator and
the third Arbitrator shall be chosen by the two so chosen. If the parties fail
to choose an Arbitrator within 30 days after notice of commencement of
arbitration or if the two Arbitrators fail to choose a third Arbitrator within
30 days after their appointment, the American Arbitration Association
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shall, upon the request of any party to the dispute or difference, appoint the
Arbitrator or Arbitrators to constitute or complete the panel, as the case may
be. Any order or determination of the arbitral tribunal shall be final and
binding upon the parties to the arbitration as to matters submitted and may be
enforced by either party in any court having jurisdiction over the subject
matter or over any of the parties. All costs and expenses incurred in connection
with any such arbitration proceeding (including reasonable attorneys fees) shall
be borne by the party against which the decision is rendered, or, if no decision
is rendered, such costs and expenses shall be borne equally by the parties. If
the Arbitrators' decision is a compromise, the determination of which party or
parties bears the costs and expenses incurred in connection with any such
arbitration proceeding shall be made by the Arbitrators on the basis of the
Arbitrators' assessment of the relative merits of the parties' positions.
Section 4.14. Consent to Jurisdiction. Each party hereby submits to the
nonexclusive jurisdiction of the Federal courts and the courts of the State of
Florida, in each case located in ▇▇▇▇▇ County, Florida for purposes of all legal
proceedings arising out of or relating to this Agreement. Each party hereby
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE CONTEMPLATED TRANSACTIONS.
[signature page to follow]
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Section 4.15. Survival. Notwithstanding anything herein to the
contrary, the provisions of Sections 2.8, 4.1, 4.3, 4.5, 4.6, 4.11, 4.13, 4.14
and this Section 4.15 shall survive any expiration or termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
FIDELITY NATIONAL FINANCIAL, INC.
By ________________________________
Name:
Title:
FIDELITY NATIONAL TITLE GROUP, INC.
By ________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
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