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EXHIBIT 10.47
AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF
AUGUST 15, 1997
BY AND AMONG
FIDELITY NATIONAL FINANCIAL, INC.,
FIRST TITLE CORPORATION,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ AND T. ▇▇▇▇▇ ▇▇▇▇▇▇
AND
FIRST TITLE ACQUISITION CORPORATION
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of this __ day of August, 1997, by and among FIDELITY NATIONAL
FINANCIAL, INC., a Delaware corporation ("FNFI"); FIRST TITLE CORPORATION, a
Tennessee corporation ("Company"); ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and T.
▇▇▇▇▇ ▇▇▇▇▇▇ (collectively,"Shareholders"); and FIRST TITLE ACQUISITION
CORPORATION, a Tennessee corporation that is a newly-formed, wholly-owned
subsidiary of FNFI ("Newco"). FNFI, Company, Shareholders and Newco are referred
to collectively herein as the "Parties" or singularly as a"Party."
RECITALS
A. Shareholders are the record and beneficial owner of 1,836 shares of
Company Common Stock (the "Company Shares"), which represents all the issued and
outstanding shares of capital stock of Company.
B. The respective Boards of Directors of FNFI, Company and Newco deem it
advisable and in the best interests of their respective shareholders that Newco
merge with and into Company (the "Merger") pursuant to this Agreement, the
Articles of Merger substantially in the form attached hereto as Exhibit A (the
"Articles of Merger") and the applicable provisions of the laws of the State of
Tennessee.
C. The Parties hereto expect that the Merger will further certain of
their business objectives, including, without limitation, increased market
share, reduced administrative costs and volume efficiencies.
D. The Boards of Directors of FNFI, Company and Newco have approved and
adopted this Agreement as a plan of reorganization within the provisions of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
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ARTICLE I
DEFINITIONS
Unless otherwise defined herein or the context otherwise requires, the
terms defined in this Section 1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and the plural forms
of any of the terms herein defined.
"Action" shall mean any actual or threatened claim, action, suit,
arbitration, hearing, inquiry, proceeding, complaint, charge or investigation by
or before any Governmental Entity or arbitrator and any appeal from any of the
foregoing.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, Liens, losses, expenses, and
fees, including court costs and attorneys' fees and expenses, in each case (i)
net of any insurance recoveries (except to the extent such recoveries increase
the cost of insurance, through retrospective adjustments or otherwise); and (ii)
net of any Tax benefit, after taking into account any Tax detriment of any
indemnity.
"Affiliate" shall mean, with respect to a Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such Person.
"Articles of Merger" has the meaning set forth in Recital B, above.
"Basis" means any past or present fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action,
failure to act, or transaction that forms or would reasonably form the basis for
any specified consequence.
"Benefit Arrangement" shall mean any form of current or deferred
compensation, bonus, stock option, stock appreciation right, severance pay,
salary continuation, pension, profit-sharing, retirement or incentive plan,
practice or arrangement, any group or individual disability, medical, dental,
health, hospitalization, life insurance or other insurance plans or related
benefits, or any other welfare or similar plan or arrangement for the benefit of
any director, officer or employee, whether active or retired, or for any class
or classes of such directors, officers or employees.
"Cash Consideration" has the meaning set forth in Section 2.2(d),
below.
"Closing" has the meaning set forth in Section 3.1, below.
"Closing Calculated Shares" means the number of shares of Fidelity
Common Stock equal to $3,760,000 divided by the Closing Fidelity Price.
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"Closing Date" has the meaning set forth in Section 3.1, below.
"Closing Fidelity Price" means the average of the per share closing
sales price of FNFI's Common Stock publicly traded on the New York Stock
Exchange for the ten (10) consecutive trading days ending two (2) days prior to
the Closing.
"Code" has the meaning set forth in Recital D, above.
"Company Shares" has the meaning set forth in Recital A.
"Company Stock" means shares of common stock, no par value per share, of
Company.
"Confidential Information" means any information concerning the
businesses and affairs of any of the Parties that is not already generally
available to the public.
"Damages" shall mean any and all losses, liabilities, obligations,
costs, expenses, damages or judgments of any kind or nature, whatsoever
(including reasonable attorneys,' accountants' and experts' fees, disbursements
of counsel, and other costs and expenses incurred pursuing indemnification
claims under Section 10 hereof).
"Effective Time" has the meaning set forth in Section 3.1, below.
"Employee Plan" shall mean any "employee benefit plan," as defined in
Section 3(3) of ERISA, which is subject to any provisions of ERISA and covers
any employee, whether active or retired, of the Company.
"Environmental, Health, and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof) concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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"Fidelity Common Stock" means the shares of restricted common stock, par
value of $0.0001 per share, of FNFI.
"Fidelity Shares" means the shares of Fidelity Common Stock, either held
in treasury and transferred to Shareholders or newly issued by FNFI to
Shareholders, to which Shareholders shall become entitled to receive pursuant to
Section 2.2(d) and (e), below.
"GAAP" means, subject to Schedule 1, at any particular time, generally
accepted accounting principles, consistently applied on a going concern basis
without regard to the pendency of the transactions contemplated hereby and using
audit scope and materiality standards used in the past and, with respect to
interim financial statements, subject to normal year-end adjustment.
"Governmental Entity" shall mean any court, federal, state, local or
foreign government or any administrative agency or commission or any other
governmental authority or instrumentality whatsoever.
"Hazardous Substances" shall mean any hazardous, toxic or infectious
substance, material, gas or waste which is regulated by any local, state or
federal Governmental Entity.
"Indebtedness" shall mean, when used with reference to any Person,
without duplication, (i) any liability of such Person created or assumed by such
Person, or any Subsidiary thereof, (a) for borrowed money, (b) evidenced by a
bond, note, debenture, or similar instrument (including a purchase money
obligation, deed of trust or mortgage) given in connection with the acquisition
of, or exchange for, any property or assets (other than inventory or similar
property acquired and consumed in the Ordinary Course of Business), including
securities and other indebtedness, (c) in respect of letters of credit issued
for such Person's account and "swaps" of interest and currency exchange rates
(and other interest and currency exchange rate hedging agreements) to which such
Person is a party or (d) for the payment of money as lessee under leases that
should be, in accordance with GAAP, recorded as capital leases for financial
reporting purposes; (ii) any liability of others described in the preceding
clause (I) guaranteed as to payment of principal or interest by such Person or
in effect guaranteed by such Person through an agreement, contingent or
otherwise, to purchase, repurchase, or pay the related Indebtedness or to
acquire the security therefor; (iii) all liabilities or obligations secured by a
Lien upon property owned by such Person and upon which liabilities or
obligations such Person customarily pays interest or principal, whether or not
such Person has assumed or become liable for the payment of such liabilities or
obligations; and (iv) any amendment, renewal, extension, revision or refunding
of any such liability or obligation.
"Initial Calculated Shares" means 230,322 shares of Fidelity Common
Stock.
"Intellectual Property" means (i) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent
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applications, and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions, and reexaminations
thereof; (ii) all trademarks, service marks, trade dress, logos, trade names,
and corporate names, together with all translations, adaptations, derivations,
and combinations thereof and including all goodwill associated therewith, and
all applications, registrations, and renewals in connection therewith; (iii) all
copyrightable works, all copyrights, and all applications, registrations, and
renewals in connection therewith; (iv) all trade secrets and confidential
business information (including ideas, research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals);
(v) all computer software (including data and related documentation); (vi) all
other proprietary rights; and (vii) all copies and tangible embodiments thereof
(in whatever form or medium).
"Legal Requirement" shall mean any statute, law, ordinance, rule,
regulation, permit, order, writ, judgment, injunction, decree or award issued,
enacted or promulgated by any Governmental Entity or any arbitrator.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Licenses" has the meaning set forth in Section 4.14, below.
"Lien" shall mean all liens (including judgment and mechanics' liens,
regardless of whether liquidated), mortgages, assessments, security interests,
easements, claims, pledges, trusts (constructive or otherwise), deeds of trust,
options or other charges, encumbrances or restrictions.
"Lower Limit Price" shall mean $14.325 per share of Fidelity Common
Stock.
"Lower Limit Shares" means the number of shares of Fidelity Common Stock
equal to $3,760,000 divided by the Lower Limit Price, or 262,478 Fidelity
Shares.
"Material Adverse Effect" means any event, effect, development,
occurrence or circumstance, individually or when taken together with all other
such events, effects, developments, occurrences or circumstances, causing,
resulting in or having a material adverse effect on (I) the business, assets,
results of operations, business relationships, properties, condition (financial
or otherwise), insurability or prospects of Company; (ii) the ability of the
Parties to consummate the transactions contemplated by this Agreement; or (iii)
the legal right or authorization of Company to continue to operate its business.
"Material Contracts" has the meaning set forth in Section 4.9, below.
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"Merger" has the meaning set forth in Recital B, above.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency and, where appropriate, in accordance with formula).
"Party" has the meaning set forth in the preamble to this Agreement.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof), or any other legal
entity.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, Lien, other than (i)
mechanic's, materialmen's, and similar liens; (ii) liens for Taxes not yet due
and payable or for Taxes that the taxpayer is contesting in good faith through
appropriate proceedings; (iii) purchase money liens and liens securing rental
payments under capital lease arrangements; and (iv) other liens arising in the
Ordinary Course of Business and not incurred in connection with the borrowing of
money.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs, duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax or contribution of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Upper Limit Price" shall mean $18.325 per share of Fidelity Common
Stock.
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"Upper Limit Shares" means the number of shares of Fidelity Common Stock
equal to $3,760,000 divided by the Upper Limit Price, or 205,184 Fidelity
Shares.
ARTICLE 2
PLAN OF REORGANIZATION
2.1 The Merger.
(a) The Merger. At the Effective Time (as defined in Section 3.1,
below), Newco shall be merged with and into Company pursuant to this Agreement
and the Articles of Merger, and the separate existence of Newco shall cease, all
in accordance with the general corporation laws of the State of Tennessee (the
"Tennessee Statute"). Company, as it exists from and after the Effective Time,
is sometimes referred to herein as the "Surviving Corporation".
(b) Effect of the Merger. Subject to the terms and conditions of
this Agreement and the Articles of Merger, at the Effective Time (i) the
separate existence of Newco shall cease and Newco shall be merged with and into
Company, and (ii) the Merger shall have all the effects provided by the
Tennessee Statute, this Agreement and the Articles of Merger.
(c) Articles of Incorporation; Bylaws; Directors and Officers.
The Articles of Incorporation of Surviving Corporation from and after the
Effective Time shall be the Articles of Incorporation of Company until
thereafter amended in accordance with the provisions therein and as provided by
the Tennessee Statute. The Bylaws of Surviving Corporation from and after the
Effective Time shall be the Bylaws of Company as in effect immediately prior to
the Effective Time, continuing until thereafter amended in accordance with their
terms and the Articles of Incorporation of Surviving Corporation and as provided
by the Tennessee Statute. The initial directors of Surviving Corporation shall
be the individuals referred to in Schedule 2.1(c)(1), in each case until their
successors are elected and qualified. The initial officers of Surviving
Corporation shall be those individuals holding such titles set forth in Schedule
2.1(c)(2), in each case until their successors are duly elected and qualified.
2.2 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of FNFI, Newco, Company or
Shareholders, the shares of capital stock of Newco and Company shall be
converted as follows:
(a) Capital Stock of Newco. Each issued and outstanding share of
capital stock of Newco shall continue to be issued and outstanding and shall be
converted into one (1) share of validly issued, fully paid and non-assessable
Common Stock of Company. Each stock certificate of Newco evidencing ownership of
any such shares shall continue to evidence ownership of such shares of Common
Stock of Surviving Corporation.
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(b) Cancellation of Certain Shares of Capital Stock of Company.
All shares of capital stock of Company that are owned directly or indirectly by
Company, including all treasury shares and all capital stock which has been
authorized but not issued, shall be canceled and no Fidelity Shares or Cash
Consideration shall be delivered in exchange therefore.
(c) Conversion of Company Shares. The Company Shares shall
automatically be canceled, extinguished and converted, without any action on the
part of the holder thereof, into the right to receive the Cash Consideration and
the Fidelity Shares, as more fully described in subsections (d) and (e), below.
All Company Shares, when so converted, shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
Shareholder shall cease to have any rights with respect thereto, except the
right to receive the Cash Consideration and the Fidelity Shares to be paid or
issued in consideration therefor upon the surrender of such certificate in
accordance with subsection (g), below.
(d) Consideration. In consideration for the cancellation and
exchange by Shareholders of the Company Shares, (I) Newco shall pay to
Shareholders the cash sum of Nine Hundred Forty Thousand Dollars ($940,000) (the
"Cash Consideration"), and (ii) FNFI shall issue to Shareholders the Initial
Calculated Shares, subject to adjustment pursuant to subsection (e), below.
(e) Adjustments to Initial Calculated Shares. No adjustment shall
be made to the number of Initial Calculated Shares to be issued Shareholders at
Closing if the Closing Fidelity Price is (i) equal to or less than the Upper
Limit Price; and (ii) equal to or greater than the Lower Limit Price. If the
Closing Fidelity Price exceeds the Upper Limit Price, then Shareholders shall
receive that number of Fidelity Shares equal to the difference between (i) the
Initial Calculated Shares, minus (ii) the Upper Limit Shares minus the Closing
Calculated Shares. If the Closing Fidelity Price is less than the Lower Limit
Price, then Shareholders shall receive the number of Fidelity Shares equal to
the sum of (I) the Initial Calculated Shares, plus (ii) the Closing Calculated
Shares minus the Lower Limit Shares. Schedule 2.2 (e) hereto sets forth examples
for the above formulas.
(f) Payment and Allocation of Consideration. Provided that all of
the conditions to the Closing set forth in Article 8, below, have been satisfied
or waived by the party benefitting therefrom, (i) Newco shall, immediately after
the Effective Time and on the Closing Date, pay to Shareholders the Cash
Consideration by delivery, at Newco's Option, of a cashier's or certified bank
check, or by wire transfer to an account or accounts designated by Shareholders;
and (ii) FNFI shall, as soon as practicable after the Effective Time, issue and
deliver the Fidelity Shares to Shareholders. The Cash Consideration and the
Fidelity Shares shall be allocated among the Shareholders pro rata in accordance
with their respective ownership interest in the Company.
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(g) Certificate Delivery Requirement. At the Effective Time,
Shareholders shall deliver to FNFI the certificates (the "Certificates")
representing the Company Shares, duly endorsed in blank by the Shareholders, or
accompanied by blank stock powers, and with all necessary transfer tax and other
revenue stamps affixed and canceled. The Certificates so delivered shall be
promptly canceled. Until delivered as contemplated by this subsection (g), each
Certificate shall be deemed at any time after the Effective Time to represent
the right to receive upon such surrender the Cash Consideration and the Fidelity
Shares as provided for and allocated in accordance with this Article 2.
ARTICLE 3
CLOSING
3.1 Closing. The consummation of the Merger and the other transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of FNFI, located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, on such date (the "Closing Date") and at such time as may be mutually
designated by the Parties within five (5) business days following the
satisfaction or waiver of the conditions set forth in Article 8, below
(including, without limitation, the Requisite Regulatory Approvals), or such
other date, time, place and manner as the Parties may mutually agree. On the
Closing Date, the Articles of Merger and any required officers' certificates,
shall be filed with the Secretary of State of the State of Tennessee in
accordance with the provisions of the Tennessee Statute. The Merger shall become
effective upon such filing or such later time on the Closing Date as may be
specified in the filing with the Secretary of State of the State of Tennessee.
3.2 Termination. If the Closing has not occurred by September 1, 1997,
either Party may terminate this Agreement upon written notice to the other
Party, provided that such terminating Party is not then in breach of any of its
covenants, representations or warranties contained in this Agreement.
Notwithstanding the foregoing, FNFI may, at its sole discretion, terminate this
Agreement prior to September 1, 1997, if it is unsatisfied with (i) its due
diligence investigation of Company described in Section 8.1(d), below; or (ii)
its review of the Schedules to the Agreement described in Section 8.1 (f),
below.
3.3 Mutual Deliveries at Closing. Provided that all of the conditions to
the Closing set forth in Section 8, below, have been satisfied or waived by the
Party benefitting therefrom, the appropriate Parties or Persons shall execute
and deliver or cause to be delivered to the appropriate parties at Closing the
following:
(a) The Employment Agreements in substantially the form of
Exhibits B, C, D, E and K hereto;
(b) The Lease Agreement in substantially the form of Exhibit F
hereto; and
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(c) The Registration Rights Agreement substantially in the form
of Exhibit G hereto.
3.4 Shareholders' Deliveries at Closing. Provided that all of the
conditions to the Closing set forth in Section 8, below, have been satisfied or
waived by the Party benefiting therefrom, Shareholders shall execute and deliver
or cause to be delivered to FNFI at the Closing the following documents:
(a) The Certificates, in accordance with Section 2(g), above;
(b) Company's original minute book, such minute book to contain
(i) original Articles of Incorporation and all amendments thereto, or
copies thereof if the originals are unavailable; (ii) the Company's
Bylaws presently in effect; (iii) the Company's stock transfer records
together with all available canceled stock certificates; and (iv) all
minutes of meetings or consents in lieu of such meetings of the
Company's Board of Directors and shareholders; and
(c) Such other documents and instruments as may be specified in
this Agreement or otherwise reasonably requested by FNFI in order to
consummate the transactions contemplated hereby.
3.5 Company's Deliveries at Closing. Provided that all of the conditions
to the closing set forth in section 8, below, have been satisfied or waived from
the Party benefitting therefrom, Company shall execute and deliver or cause to
be delivered to FNFI at the Closing the following:
(a) An Officer's Certificate dated the Closing Date
substantially in the form of Exhibit H hereto;
(b) A Secretary's Certificate dated the Closing Date
substantially in the form of Exhibit I hereto;
(c) An opinion of counsel substantially in the form of Exhibit J
hereto;
(d) A good standing certificate of Company, dated within fifteen
(15) business days of the Closing Date, for each jurisdiction in which
Company is required to be qualified and authorized to do business;
(e) Minutes of the Board of Directors and shareholders of Company
authorizing and approving this agreement and the transactions
contemplated herein; and
(f) Resignations of all of the directors of Company effective as
of the Closing Date.
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3.6 FNFI's Deliveries at Closing. Provided that all of the conditions to
the Closing set forth in Section 8, below, have been satisfied or waived by the
Party benefiting therefrom, FNFI shall execute and deliver or cause to be
delivered to Shareholders at the Closing the following:
(a) The Fidelity Shares in accordance with Section 2.2 (f),
above; and
(b) Such other documents and instruments as may be specified in
this Agreement or otherwise reasonably requested by Shareholder in order
to consummate the transactions contemplated hereby.
3.7 Newco's Deliveries. Provided that all of the conditions to the
Closing set forth in Section 8, below, have been satisfied or waived by the
Party benefitting therefrom, Newco shall deliver to Shareholders the Cash
Consideration in accordance with Section 2.2 (f), above.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF COMPANY AND SHAREHOLDERS
Company and Shareholders hereby make the following representations and
warranties to FNFI and Newco as of the date hereof and as of the Closing Date:
4.1 Organization and Standing; Articles and Bylaws. Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Tennessee, has full power and authority to own its properties
and to carry on its business as presently conducted. Company is duly qualified
and authorized to do business, and is in good standing as a foreign corporation,
in each jurisdiction where the nature of its activities and of its properties
(both owned and leased) make such qualification necessary, except where the
failure to so qualify would not have a Material Adverse Effect upon Company.
Company has furnished FNFI with copies of its Articles of Incorporation and
Bylaws, as amended to the date hereof. Said copies are true, correct and
complete and contain all amendments through the Closing Date.
4.2 Authorization. All corporate action on the part of Company, its
officers, directors and shareholders necessary for the authorization, execution
and delivery of this Agreement and the documents contemplated hereby, the
performance of all of Company's and Shareholders' obligations hereunder and
thereunder, and for the authorization, issuance, sale and delivery of the
Company Shares have been taken or will be taken prior to the Closing. This
Agreement and the documents contemplated hereby, when executed and delivered,
shall constitute valid and legally binding obligations of Company and
Shareholders enforceable in accordance with their respective terms, subject to
laws of general application relating to bankruptcy,
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insolvency and the relief of debtors and subject to the availability of
equitable remedies.
4.3 Subsidiaries. Company does not presently own or control, directly or
indirectly, any equity interest in any corporation, association, or business
entity. Company is not directly or indirectly a participant in any joint venture
or partnership.
4.4 Capitalization. The authorized capital stock of Company consists of
2000 shares of Common Stock, no par value, of which 1,836 shares are issued and
outstanding. All of the Company Shares have been duly authorized and validly
issued, are fully paid and non-assessable and are owned of record and
beneficially by each Shareholder in the amounts set forth in Schedule 4.4
hereto, free and clear of all Liens and claims of every kind. All of the Company
Shares were offered, issued, sold and delivered by Company in compliance with
all applicable state and federal laws concerning the issuance of securities.
None of the Company Shares were issued in violation of any preemptive rights
created by statue, or by Company's charter document, or by any agreement to
which Company may be bound. Schedule 4.4 hereto contains a complete list of, and
the number of shares owned of record by, the holders of the issued and
outstanding Company Stock.
Other than as described in this Section 4.4, there are no outstanding
shares of Company Stock, preferred stock or any other equity securities of
Company, and there are no options, warrants, calls, conversion rights,
commitments or agreements of any character to which Company or any Shareholder
may be bound that do or may obligate Company to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of Company Stock, preferred
stock or other equity securities or that do or may obligate Company to grant,
extend or enter into any such option, warrant, call, conversion right,
commitment or agreement. There are no outstanding arrangements, agreements,
commitments or understandings of any kind affecting or relating to the voting,
issuance, purchase, redemption, repurchase or transfer of any capital stock of
Company or any other securities of Company. Other than as provided in or
contemplated by this Agreement, neither Company nor Shareholders have, or prior
to the Effective Time will have, become a party to or subject to any contract or
obligation wherein any Person has a right or option to purchase or acquire any
rights in any additional capital stock or securities of Company. As a result of
the Merger, FNFI will be the record and beneficial owner of all outstanding
capital stock of Company and rights to acquire capital stock of Company.
4.5 Financial Statements. The balance sheet and statements of
shareholders' equity of Company as of July 31, 1997, together with statements of
income for the year ending December 31, 1996, heretofore delivered to FNFI, are
complete and correct in all material respects, and fairly present the financial
condition of Company and the results of its operation as of the dates and for
the periods referred to and have been
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prepared in accordance with generally accepted accounting principles
consistently applied. There are no liabilities, direct or indirect, fixed or
contingent, which are not reflected in the balance sheet as of July 31, 1997,
except for liabilities and obligations incurred in the ordinary course of
business subsequent to July 31, 1997, which, either individually or in the
aggregate, would not be material. There is no basis for any assertion against
Company of any liability or obligation of any nature whatsoever that is not
fully reflected in the financial statements delivered to FNFI which, either
individually or in the aggregate, would be material.
4.6 Material Contracts. Schedule 4.6 hereto contains a complete and
accurate list of all Material Contracts to which Company is a party or bound.
Without limiting the generality of the foregoing, such list includes all such
contracts and agreements and all licenses and instruments which (i) grant a
Security Interest or permit or provide for the imposition of any Lien on, or
provide for the sale (other than in the ordinary course of business and
consistent with past practices) of, any of the assets of Company or of any of
the shares of the Company Stock; (ii) require the consent of any third party to,
or would interfere with, the consummation by Company or Shareholders of the
transactions contemplated by this Agreement; (iii) involve the borrowing of
money or provide for capital expenditures to be made in the future; or (iv)
relate to Company's Intellectual Property rights. True, correct and complete
copies of all Material Contracts listed on Schedule 4.6 have been furnished by
Company to FNFI. Each Material Contract so listed is a valid and binding
obligation of Company and is enforceable in accordance with its terms. Company
has performed all material obligations required to be preformed by it to date
and is not in default under or in breach of any term or provision of any
Material Contract to which Company is a party, is subject or is otherwise bound,
and no event has occurred that, with the giving of notice or the passage if time
or both, would constitute such a default or breach under any Material Contract.
To the best knowledge of Company and the Shareholders, no party with whom
Company has a Material Contract is in default of its obligations thereunder.
Except as set forth on Schedule 4.6, no consent or approval of any party to any
of the Material Contracts is necessary in order to permit Company to consummate
the transactions contemplated hereby.
4.7 Title to Assets Other Than Real Property. Except as set forth on
Schedule 4.7 hereto, Company has good and marketable title to all properties and
assets (other than real property which is subject to Section 4.8) owned or
leased by the Company, free and clear of all Liens except for: (i) Liens for
current Taxes not yet due and payable which have been fully reserved for; and
(ii) Liens, if any, that are not substantial in character, amount or extent and
do not detract materially from the value, or interfere with present use of the
sale or other disposition, of the property subject thereto or affected thereby.
The assets and properties of Company constitute all the assets, properties,
rights, privileges and interests necessary for the operation of Company'
business.
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4.8 Real Property. Schedule 4.8 hereto contains an accurate list and
general description of all real property owned or leased by Company. Company has
good and marketable title to the real properties that it owns, as described in
such schedule, free and clear of all Liens and Security Interests, except for
(i) rights of lessors, lessees or sublessees in such matters that are reflected
in a written lease; (ii) current Taxes (including assessments collected with
Taxes) not yet due and payable; (iii) Liens, if any, that are not substantial in
character, amount, or extent and do not materially detract from the value, or
interfere with present use of the ability of Company to sell or otherwise
dispose, of the property subject thereto or affected thereby; and (iv) other
matters as described in Schedule 4.8 hereto. Company has valid leasehold
interests in the leaseholds it holds, free and clear of all Liens and Security
Interests, except for (i) claims of lessors, co-lessees or sublessees in such
matters as are reflected in a written lease; (ii) title exceptions affecting the
fee estate of the lessor under such leases; and (iii) other matters as described
in Schedule 4.8 hereto. Company is not in default, and no facts or circumstances
have occurred which, through the passage of time or both, or the giving of
notice would constitute a default, under any lease under which Company possesses
or uses real property. The activities of Company, with respect to all real
property owned or leased by it for use in connection with its operations, are in
all material respects permitted and authorized by applicable zoning laws,
ordinances and regulations and all laws and regulations of any Governmental
Entity.
4.9 No Conflicts. Neither the execution and delivery nor the performance
of this Agreement by Company or Shareholders will result in any of the
following: (i) a default or an event that, with notice or lapse of time or both,
could be a default, breach or violation of (A) the Articles of Incorporation or
Bylaws of Company, (B) any contract, lease, license, franchise, promissory note,
conditional sales contract, commitment, indenture, mortgage, deed of trust,
security or pledge agreement, or other agreement, instrument, or arrangement to
which Company or any of the Shareholders is a party or by which any of their
respective properties or any of their respective assets are bound and which is
material to Company or such Shareholder (a "Material Contract"); (ii) the
termination of any Material Contract or the acceleration of the maturity of any
indebtedness or other material obligation of Company or any of the Shareholders;
(iii) the creation or imposition of any Lien on any of the respective assets or
properties of Company or any of the Shareholders or any of their shares of the
Company Stock; (iv) a violation or breach of any writ, injunction or decree of
any court or governmental instrumentality to which Company or any of the
Shareholders is a party or by which any of their respective properties are
bound.
4.10 Litigation. Except as set forth in Schedule 4.10 hereto, there are
no actions, proceedings, or investigations before any court or administrative
agency pending or currently threatened against or with respect to Company (or
any basis therefor known to Company or Shareholders), which question the
validity of this Agreement or any action taken or to be taken in connection
herewith, or which,
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Company individually or in the aggregate, might result in a Material Adverse
Effect, or in any material impairment of the right or ability of each to carry
on its business as now conducted or as proposed to be conducted, or in any
material liability on the part of Company. Company is not a party or subject to,
and none of its assets are bound by, the provisions of any order, writ,
injunction, judgment, or decree of any court or governmental agency or
instrumentality.
4.11 Taxes. Company has no liability for any federal, state or local
Taxes, except for Taxes which have accrued and are not yet payable. Company has
filed all Tax Returns required to be filed by it and has paid all income Taxes
payable by it which have become due pursuant to such tax returns and all other
Taxes and assessments payable by it which have become due, other than those not
yet delinquent and except for those contested in good faith and for which
adequate reserves have been established. Company has paid, or has provided
adequate reserves (in the good faith judgment of Company and Shareholders) for
the payment of, all federal and state Taxes applicable for all prior fiscal
years and for the current fiscal year to the date hereof.
4.12 Employees. Schedule 4.12 hereto sets forth a complete list of all
current employees of Company, together with each employee's tenure with Company,
title or job classification, and the current semi-monthly rate of compensation
payable to each such employee. There are no unfair labor practice complaints,
strikes, slowdowns, stoppages or other controversies pending or, to the best
knowledge of Company or Shareholders, attempts to unionize or controversies
threatened between Company and, or relating to, any of its employees. Company is
not a party to any collective bargaining agreement with respect to any of its
employees or to a written employment contract with any of its employees, except
as set forth on Schedule 4.12 hereto, and there are no understandings with
respect to the employment of any officer or employee of Company which are not
terminable by Company without liability on not more than thirty (30) days'
notice. Except as set forth on Schedule 4.12 hereto, no officer, director, or
employee is entitled to receive any payment of any amount under any existing
agreement, severance plan or other benefit plan, or to the accrual or vesting of
any other benefit or payment as a result of the consummation of any transactions
contemplated by this Agreement. Company has complied with all applicable federal
and state statutes and regulations which govern workers' compensation, equal
employment opportunity and equal pay.
4.13 Governmental Consents. All consents, approvals, orders, or
authorizations of, or registrations, qualifications, designations, declarations
or filings with, any governmental authority, required on the part of Company
and/or Shareholders in connection with the valid execution and delivery of this
Agreement and the offer, sale or issuance of the Company Stock, or the
consummation of any other transaction contemplated hereby have been obtained, or
will be effective at the Closing,
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except for notices required or permitted to be filed with certain state and
federal securities commissions after the Closing, which notices will be filed on
a timely basis.
4.14 Operating Rights. Company has all operating authority, licenses,
franchises, permits, certificates, consents, rights and privileges
(collectively, "Licenses") as are necessary or appropriate to the operation of
its business as now conducted and as proposed to be conducted. Such Licenses are
in full force and effect, no violations have been or are expected to have been
recorded in respect of any such Licenses, and no proceeding is pending or
threatened that could result in the revocation or limitation of any such
Licenses. Company has conducted its business so as to comply in all material
respects with all such Licenses.
4.15 Compliance with Applicable Laws. The business and operations of
Company have been and are being conducted in compliance with all laws,
ordinances, regulations, rules, orders, judgments or decrees to which Company is
subject. Company holds, and the properties, assets, operations and businesses of
Company have been maintained and conducted in all material respects in
compliance with, all authorizations, permits, licenses, certificates, variances,
exemptions, orders, franchises, rights and approvals that are necessary for the
conduct of its businesses. No investigation or review by any governmental entity
with respect to Company is pending or, to the best knowledge of Company or
Shareholders, threatened, nor has any governmental entity indicated to Company
an intention to conduct the same.
4.16 Insurance. Company has in full force and effect policies of
insurance with respect to its assets and businesses against such casualties and
contingencies and in such amounts, types and forms as are customarily
appropriate for its businesses, operations, properties and assets. Schedule 4.16
hereto contains a list of all such policies of insurance maintained by or on
behalf of Company. Company is not in default under any such policy of insurance
such that it can be canceled and all claims thereunder have been filed in timely
fashion.
4.17 Absence of Changes. Except as disclosed in Schedule 4.17 hereto,
since January 1, 1997, there has not been (i) any change or amendment in the
Articles of Incorporation, Bylaws or other governing instruments of Company;
(ii) any sale or issuance of, or grant of options or rights to acquire, any
shares of the Company Common Stock or other securities of Company or any
declaration, setting aside, or payment of dividends or redemptions in respect of
any shares of capital stock of Company, or any direct or indirect redemption,
purchase, or other acquisition of such stock, or any agreement, understandings
or commitments to do the same; (iii) any transfer or other disposition or pledge
of, or the grant of options or rights to acquire, any of the outstanding shares
of the Company Common Stock by any of the Shareholders; (iv) any amendment,
termination or revocation, or any threat of any amendment, termination, or
revocation having a Material Adverse Effect, of any
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Material Contract; (v) any sale, transfer, mortgage, pledge, or subjection to
Lien of, on or affecting any of the assets of the Company valued at or above
$5,000 individually or in the aggregate; (vi) any increase in the compensation
paid or payable or in the fringe benefits provided to any employee of Company,
or the adoption of any employee benefit plans not in existence in the fiscal
year ended December 31, 1996; (vii) any damage, destruction or loss, whether or
not covered by insurance, of any of the assets of Company; or (viii) any
purchase of lease, or commitment for the purchase or lease, of equipment or
other capital items not disclosed in Company's financial statements which is in
excess of the normal, ordinary and usual requirements of the business of
Company.
4.18 Employee Plans. Schedule 4.18 hereto sets forth a complete list of
all Employee Plans and Benefit Arrangements maintained, administered or
contributed to, or otherwise participated in, by Company. True and complete
copies of each such Employee Plan or Benefit Arrangement, including amendments
thereto, have been provided to FNFI, together with true and complete copies of
(i) annual reports for the most recent three (3) years (Form 5500 Series
including, if applicable, Schedules A and B thereto); (ii) all plan documents
and the most recent summary plan description of each such Employee Plan,
together with any modifications thereto; and (iii) the most recent favorable
determination letter (if applicable) from the Internal Revenue Service for each
such Employee Plan. None of the Employee Plans is a "multiemployer plan" as
defined in Section 3(37) of ERISA or a "multiple employer plan" as covered in
Section 412(C) of the Code, and the Company has not been obligated to make a
contribution to any such multiemployer or multiple employer plan. All
contributions (including all employer contributions and employee salary
reduction contributions) which are due have been paid to each such Employee Plan
or Benefit Arrangement and all contributions for any period ending on or before
the Closing Date which are not yet due have been paid to each such Employee Plan
or Benefit Arrangement or accrued in accordance with past custom and practice of
Company. Each Employee Plan which is intended to be qualified under Section
401(a) of the Code is so qualified and each trust maintained pursuant thereto is
exempt from income tax under Section 501(a) of the Code. Neither Company nor any
Employee Plan, nor any trusts created thereunder, nor any trustee, administrator
nor any other fiduciary thereof, has engaged in a "prohibited transaction," as
defined in Section 406 of ERISA and Section 4975 of the Code, or any breach of
fiduciary duty as defined in Part 4 of Subtitle B of Title I of ERISA.
4.19 Intellectual Property Rights.
4.19.1 Company owns, or has the right to use, sell or license all
Intellectual Property necessary or required for the conduct of its business as
presently conducted and such rights to use, sell or license are reasonably
sufficient for such conduct of Company's business. Company has taken all
reasonable and practicable
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action designed to safeguard and maintain the secrecy and confidentiality of,
and its proprietary right in, all of its Intellectual Property.
4.19.2 Neither the manufacture, marketing, license, sale or
intended use of any Intellectual Property licensed or sold by Company or
currently under development by Company violates any license or agreement between
Company and any third party or infringes any Intellectual Property of any other
party; and there is not pending or, to the best knowledge of Company and
Shareholders, threatened any claim or litigation contesting the validity,
ownership or right to use, sell, license or dispose of any Intellectual Property
or that the proposed use, sale, license or disposition thereof conflicts or will
conflict with the rights of any other party, nor to the best knowledge of the
Company and Shareholders, is there any basis for any such assertion.
4.20 Environment, Health and Safety.
4.20.1 Company has complied with all Environmental, Health and
Safety Laws, except where failure to comply would not have a Material Adverse
Effect, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against it
alleging any failure so to comply. Without limiting the generality of the
preceding sentence, Company has obtained and been in compliance with all of the
terms and conditions of all permits, licenses, and other authorizations which
are required under, and has complied with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables which are contained in, all Environmental, Health, and Safety Laws,
except where failure to comply would not have a Material Adverse Effect.
4.20.2 Company has not handled or disposed of any substance,
arranged for the disposal of any substance, exposed any employee or other
individual to any substance or condition, or owned or operated any property or
facility in any manner that could form a reasonable basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against Company giving rise to any Liability, except where
having done so would not have a Material Adverse Effect. Company has no
Liability for damage to any site, location, or body of water (surface or
subsurface), for any illness of or personal injury to any employee or other
individual, or for any reason under any Environmental, Health, and Safety Law
which could have a Material Adverse Effect.
4.20.3 To the best of Company's and Shareholders' knowledge, all
properties used in its business are free of Hazardous Substances, except where
the existence thereof would not have a Material Adverse Effect.
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4.21 Certain Transactions. There are no existing or pending
transactions, nor are there any agreements or understandings, between Company,
or any of the Shareholders or the officers, directors, or employees of Company,
or any person or entity affiliated with any of them, including, without
limitation, any transactions, arrangements or understandings relating to the
purchase or sale of goods or services or the sale, lease or use of any of the
assets of or by Company, with or without adequate compensation, or to any
indebtedness owed to or by Company, in any amount whatsoever.
4.22 Investment Representations. Each Shareholder represents that they
are receiving the Fidelity Shares for their own account for investment purposes
only, and not as a nominee or agent for any other person, and not with a view to
or for resale in connection with any distribution thereof. Each Shareholder
hereby acknowledges that the Fidelity Shares to be issued hereunder will not be
registered under the Securities Act, nor qualified under any state securities
laws on the ground, among others, that no distribution or public offering is to
be effected.
4.23 Absence of Claims Against Company. None of the Shareholders has any
claims against the Company.
4.24 Certain Claims. Schedule 4.24 hereto lists all litigation and claim
matters asserted or assertable by third Persons including, without limitation,
those litigation and claim matters related to the Company's title insurance or
other related services.
4.25 Tax-Free Reorganization. This Agreement, the Merger and the
transactions contemplated thereby qualify, in all respects, as a tax-free
reorganization pursuant to Code Section 368(a).
4.26 Brokers' Fees. Company has no liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
4.27 Full Disclosure. Neither this Agreement, the representations and
warranties by Company and/or Shareholders contained herein, the Exhibits or
Schedules hereto, nor any other written statement or certificate delivered or to
be furnished to FNFI in connection herewith, when read together, contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained herein or therein not misleading.
There is no fact known to Company or Shareholders which has not been disclosed
to FNFI that would materially adversely affect Company's business or financial
condition or its ability to perform its obligations under this Agreement.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF FNFI
FNFI and Newco hereby represent and warrant to Company and Shareholders
as follows:
5.1 Organization and Good Standing. FNFI and Newco are corporations duly
organized, validly existing and in good standing under the laws of the States of
Delaware and Tennessee, respectively, and have all requisite corporate power and
authority to own, operate and lease their properties and to carry on their
respective business as they are being conducted on the date of this Agreement.
FNFI and Newco have all requisite corporate power and authority to enter into
this Agreement and to perform their respective obligations hereunder with
respect to the consummation of the transactions contemplated hereby.
5.2 Authorization. The execution and delivery of this Agreement by FNFI
and Newco and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of FNFI and Newco,
respectively. This Agreement has been duly executed and delivered by FNFI and
Newco and constitutes a legal, valid and binding obligation of FNFI and Newco,
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally and by general equitable principles.
5.3 Noncontravention. Neither the execution and delivery of this
Agreement by FNFI and Newco nor the consummation of the transactions
contemplated hereby by FNFI and Newco will (i) violate any statute, regulation,
rule, injunction, judgment, order, decree, ruling charge, or other restriction
of any Governmental Entity to which FNFI or Newco is subject or any provision of
the charter or bylaws of FNFI and Newco; or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument or other
arrangement to which either FNFI or Newco is a party or by which they are bound
or to which any of their assets is subject, except where the violation,
conflict, breach, default, acceleration, termination, modification,
cancellation, or failure to give notice would not have a material adverse effect
on the ability of FNFI and/or Newco to consummate the transactions contemplated
by this Agreement.
5.4 Fidelity SEC Documents. FNFI has filed all forms, reports and
documents required to be filed with the SEC (the "Fidelity SEC Documents"), all
of which have been made available to Company. As of their respective dates, the
Fidelity SEC Documents complied in all material respects with the requirements
of the Securities Act and the Exchange Act, as the case may be, and the rules
and regulations
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of the SEC thereunder applicable to such Fidelity SEC Documents, and none of the
Fidelity SEC Documents contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of FNFI included in the Fidelity SEC
Documents comply in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto, or in the case of the unaudited interim financial statements, as
permitted by Form 10-Q promulgated by the SEC) and fairly present (subject, in
the case of the unaudited interim financial statements, to recurring audit
adjustments normal in nature and amount) the consolidated financial position of
FNFI as at the dates thereof and the consolidated results of its operations and
cash flows or changes in financial position for the periods then ended.
5.5 Fidelity Shares. All of the Fidelity Shares to be issued to
Shareholders in connection with the Merger shall be duly authorized, validly
issued, fully paid and non-assessable. Such shares shall be offered, issued,
sold and delivered by FNFI in compliance with all applicable state and federal
laws concerning the issuance of securities and none of such shares shall be
issued in violation of the preemptive rights of any shareholder of FNFI.
5.6 Brokers' Fees. Neither FNFI nor Newco is a party to or obligated
under any agreement with any broker, agent, or finder relating to the
transactions contemplated hereby, and neither the execution of this Agreement
nor the consummation of the transactions provided for herein will result in any
liability to any broker, agent, or finder.
5.7 Disclosure. The representations and warranties contained in this
Article 5 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained herein, in light of the circumstances under which they are
made, not misleading.
ARTICLE 6
CONDUCT OF BUSINESS PENDING CLOSING
During the period commencing on the date hereof and continuing through
the Closing Date, Company and Shareholders, jointly and severally, covenant and
agree that:
6.1 Qualification. Company shall maintain all qualifications to transact
business and remain in good standing in its jurisdiction of incorporation and in
the foreign jurisdictions in which Company owns or leases any property or
conducts any business.
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6.2 Ordinary Course. Company shall conduct its business in, and only in,
the Ordinary Course of Business and, to the extent consistent with such
business, shall not make or institute any unusual or novel methods of
management, accounting, or operation that vary materially from those methods
used by the Company as of the date of this Agreement. Company will use its best
efforts to preserve its business organizations intact, to keep available to
Company its present officers and employees, and to preserve its present
relationships with suppliers, customers, and others having business
relationships with the Company. Company shall maintain its properties and assets
in good condition and repair.
6.3 Corporate Changes. Company shall not (i) amend its Articles of
Incorporation or Bylaws (or equivalent documents); (ii) acquire by merging or
consolidating with, or agreeing to merge or consolidate with, or purchase
substantially all of the stock or assets of, or otherwise acquire, any business
or any corporation, partnership, association or other business organization or
division thereof; (iii) enter into any partnership or joint venture; (iv)
declare, set aside, make or pay any dividend or other distribution in respect of
its capital stock or purchase or redeem, directly or indirectly, any shares of
its capital stock; (v) issue or sell any shares of its capital stock of any
class or any options, warrants, conversion or other rights to purchase any such
shares or any securities convertible into or exchangeable for such shares; or
(vi) liquidate or dissolve or obligate itself to do so. Notwithstanding
subsection (iv) of this section 6.3, FNFI understands that Company has been
filing under Subchapter S of the Code and has made certain distributions of
previously taxed income. Such distributions shall be allowed provided (i) they
do not exceed, in the aggregate, Three Hundred Thousand Dollars ($300,000)
during the period between May 31, 1997 and the Closing; and (ii) the
post-distribution net worth of Company, determined in accordance with GAAP,
exceeds Six Hundred Eighty-Seven Thousand Dollars ($687,000).
6.4 Indebtedness. Company shall not incur any indebtedness, sell any
debt securities or lend money to or guarantee the Indebtedness of any Person.
Company shall not restructure or refinance its existing Indebtedness.
6.5 Accounting. Company shall not make any change in the accounting
principles, methods, records or practices followed by it or depreciation or
amortization policies or rates heretofore adopted by it. Company shall maintain
its books, records, and accounts in accordance with GAAP applied on a basis
consistent with that of prior periods.
6.6 Compliance with Legal Requirements. Company shall comply promptly
with all requirements that applicable law may impose upon it and its operations
and with respect to the transactions contemplated by this Agreement, and shall
cooperate promptly with, and furnish information to, FNFI in connection with any
such requirements imposed upon FNFI, or upon any of its Affiliates, in
connection therewith or herewith.
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6.7 Disposition of Assets. Company shall not sell, transfer, license,
lease or otherwise dispose of, or suffer or cause the encumbrance by any Lien
upon any of its properties or assets, tangible or intangible, or upon any
interest therein.
6.8 Compensation. Company shall not (i) adopt or amend in any material
respect any collective bargaining, bonus, profit-sharing, compensation, stock
option, pension, retirement, deferred compensation, Employee Plan, Benefit
Arrangement, or any other agreement, trust, fund or arrangement for the benefit
of employees other than to comply with any Legal Requirement; or (ii) pay, or
make any accrual or arrangement for payment of, any increase in compensation,
bonuses or special compensation of any kind, or any severance or termination pay
to, or enter into any employment or loan or loan guarantee agreement with, any
current or former officer, director, employee or consultant of Company.
6.9 Modification or Breach of Agreements; New Agreements. Company shall
not terminate or modify, or commit or cause or suffer to be committed any act
that will result in breach or violation of any term of or (with or without
notice or passage of time, or both) constitute a default under or otherwise give
any Person a basis for nonperformance under, any Material Contract, written or
oral, disclosed in this Agreement or the Schedules hereto. Company shall refrain
from becoming a party to any contract or commitment other than in the Ordinary
Course of Business. Company shall meet all of its contractual obligations in
accordance with their respective terms.
6.10 Capital Expenditures. Except as set forth on Schedule 6.10 hereto,
except for capital expenditures or commitments necessary to maintain its
properties and assets in good condition and repair (the amount of which shall
not exceed $5,000 individually or in the aggregate), Company shall not purchase
or enter into any contract to purchase any capital assets.
6.11 Consents. Company shall use its best efforts to obtain any consent,
authorization or approval of, or exemption by, any Person required to be
obtained or made by any Party hereto in connection with the transactions
contemplated hereby or the taking of any action in connection with the
consummation thereof.
6.12 Maintenance of Insurance. Company shall maintain its policies of
insurance in full force and effect and shall not do, permit or willingly allow
to be done any act by which any of said policies of insurance may be suspended,
impaired or canceled.
6.13 Discharge. Company shall not cancel, compromise, release or
discharge any claim of Company upon or against any Person or waive any right of
Company of material value, and not discharge any Lien upon any asset of Company
or compromise any debt or other obligation of Company to any Person other than
Liens, debts or obligations with respect to current Liabilities of Company.
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6.14 Actions. Company shall not institute, settle or agree to settle any
Action before any Governmental Entity.
6.15 Taxes and Tax Assessments. Company shall pay, when due, and prior
to the imposition or assessment of any interest, penalties or Liens by reason of
the nonpayment of, all Taxes assessed against Company, its assets, properties or
operations. Company shall furnish promptly to FNFI a copy of all notices of
proposed assessment or similar notices or reports that are received from any
taxing authority and which relate to Company's operations for periods ending on
or prior to the Closing Date.
ARTICLE 7
ADDITIONAL COVENANTS
7.1 Covenants of Company and Shareholders. During the period from the
date hereof through the Closing Date, Company and Shareholders agree to:
(a) Comply promptly with all applicable Legal Requirements
imposed upon them with respect to the transactions contemplated by this
Agreement, and shall cooperate promptly with, and furnish information to, FNFI
in connection with any such requirements imposed upon FNFI or upon any of its
Affiliates in connection therewith or herewith;
(b) Use their reasonable best efforts to obtain (and to cooperate
with FNFI in obtaining) any consent, authorization or approval of, or exemption
by, any Person required to be obtained or made by Shareholders in connection
with the transactions contemplated by this Agreement;
(c) Use their reasonable best efforts to bring about the
satisfaction of the conditions precedent to Closing set forth in Section 8.1
below;
(d) Immediately advise FNFI orally and, within three (3) business
days thereafter, in writing of any change in Company's business or condition
that has had or may have a Material Adverse Effect;
(e) Deliver to FNFI prior to the Closing a written statement
disclosing any untrue statement in this Agreement or any Exhibit or Schedule
hereto (or supplement thereto) or document furnished pursuant hereto, or any
omission to state any material fact required to make the statements herein or
therein contained complete and not misleading, immediately upon the discovery of
such untrue statement or omission, accompanied by a written supplement to any
Exhibit or Schedule to this Agreement that may be affected thereby; provided,
however, that the disclosure of such
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untrue statement or omission shall not prevent FNFI from terminating this
Agreement pursuant to Section 9.1(c) hereof at any time at or prior to the
Closing in respect of any original untrue or misleading statement;
(f) Be responsible for the preparation and filing of all Company
Subchapter S Tax returns for all periods up to and including the Closing Date,
and have paid or will pay all Taxes attributable to such periods; and
(g) Assume and be responsible for any and all Liability,
including without limitation any and all Tax Liability, caused by, arising from,
or related to the failure of the Merger to qualify, in any respects, as a
tax-free reorganization pursuant to Code Section 368 (a).
7.2 Covenants of FNFI. During the period from the date hereof to the
Closing Date, FNFI shall:
(a) Comply promptly with all applicable Legal Requirements
imposed upon it with respect to the transactions contemplated by this Agreement,
and shall cooperate promptly with, and furnish information to, Shareholders in
connection with any such requirements imposed upon the Shareholders or Company
or upon any of Company's Affiliates in connection therewith or herewith;
(b) Use its reasonable best efforts to obtain any consent,
authorization or approval of, or exemption by, any Person required to be
obtained or made by FNFI in connection with the transactions contemplated by
this Agreement;
(c) Use its reasonable best efforts to bring about the
satisfaction of the conditions precedent to Closing set forth in Section 8.2 of
this Agreement; and
(d) Cause Surviving Corporation to continue at least one (1)
significant historical business line of Company, or use at least a significant
portion of Company's historical business assets in a business, in each case in
accordance with Treasury Regulation Section 1.368-1.
7.3 Access and Information.
(a) During the period commencing on the date hereof and
continuing through the Closing Date, Shareholders shall cause Company to afford
to FNFI and to FNFI's accountants, counsel, and other representatives,
reasonable access to all of its properties, books, contracts, commitments,
records and personnel and, during such period, to cause Company to furnish
promptly to FNFI all information concerning its business, properties and
personnel as FNFI may reasonably request.
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(b) Except to the extent permitted by the provisions of Section
7.6 below, FNFI shall hold in confidence, and shall use reasonable efforts to
ensure that its employees and representatives hold in confidence, all such
information supplied to it by Shareholders or Company concerning Company and
shall not disclose such information to any third party except as may be required
by any Legal Requirement and except for information that (i) is or becomes
generally available to the public other than as result of disclosure by FNFI or
its representatives; (ii) becomes available to FNFI or its representatives from
a third party other than Shareholders or Company, and FNFI or its
representatives have no reason to believe that such third party is not entitled
to disclose such information; (iii) is known to FNFI or its representatives on a
non-confidential basis prior to its disclosure by any Shareholder or Company; or
(iv) is made available by any Shareholder or Company to any other Person on a
non-restricted basis. FNFI's obligations under the foregoing sentence shall
expire on the Closing Date or, if the closing does not occur, one year after the
date hereof.
7.4 Expenses. All costs and expenses (including, without limitation, all
legal fees and expenses and costs) incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
the same.
7.5 Certain Notifications. At all times from the date hereof to the
Closing Date, each Party shall promptly notify the others in writing of the
occurrence of any event that will or may result in the failure to satisfy any of
the conditions specified in Article 8, below.
7.6 Publicity. At all times prior to the Closing Date, each Party shall
obtain the consent of all other Parties hereto prior to issuing, or permitting
any of its directors, officers, employees or agents to issue, any press release
or other information to the press, employees of Company or any third party with
respect to this Agreement or the transactions contemplated hereby; provided,
however, that no party shall be prohibited from supplying any information to any
of its representatives, agents, attorneys, advisors, and others to the extent
necessary to complete the transactions contemplated hereby so long as such
representatives, agents, attorneys, advisors, and others are made aware of the
terms of this Section 7.6. Nothing contained in this Agreement shall prevent any
party to this Agreement at any time from furnishing any required information to
any Governmental Entity or authority pursuant to a Legal Requirement or from
complying with its legal or contractual obligations.
7.7 Further Assurances.
(a) Subject to the terms and conditions of this Agreement, each
of the Parties hereto agrees to use all reasonable efforts to take, or cause to
be taken, all action, and to do, or cause to be done, all things necessary,
proper or advisable under
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applicable Legal Requirements, to consummate and make effective the transactions
contemplated by this Agreement.
(b) If at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, the
Shareholders and the proper officers or directors of FNFI and Company, as the
case may be, shall take or cause to be taken all such necessary or convenient
action and execute, and deliver and file, or cause to be executed, delivered and
filed, all necessary or convenient documentation.
7.8 Competing Offers. Shareholders agree that they will not, and will
cause Company not to, directly or indirectly, through an officer, director,
agent, or otherwise, solicit, initiate or encourage the submissions of bids,
offers or proposals by, any Person with respect to an acquisition of Company or
its assets or capital stock or a merger or similar transaction, and Shareholders
will not, and will not permit Company to, engage any broker, financial adviser
or consultant to initiate or encourage proposals or offers from other parties.
Furthermore, Shareholders shall not, and shall not permit Company to, directly
or indirectly, through any officer, director, agent or otherwise, engage in
negotiations concerning any such transaction with, or provide information to,
any Person other than FNFI and its representatives with a view to engaging, or
preparing to engage, that Person with respect to any matters in this Section
7.8. Shareholders shall ensure that Company shall not commence any proceeding to
merge, consolidate or liquidate or dissolve or obligate itself to do so.
7.9 Post-Termination Employment. Company and Shareholders acknowledge
and agree that after the Effective Time (i) neither FNFI nor Surviving
Corporation shall be required to employ or retain any employee of Company or any
other Person; and (ii) FNFI, in its sole and absolute discretion, may cause
Surviving Corporation to retain all, some, or none or such employees.
7.10 Employment Agreements. On or before the Closing Date, Shareholders
shall cause Company and the appropriate employee of Company to execute the
Employment Agreements substantially in the forms of Exhibits B, C, D, E and K
hereto.
7.11 Lease Agreement. On or before the Closing Date, Shareholders shall
cause Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to execute the Lease Agreement substantially
in the form of Exhibit F hereto.
7.12 Registration Rights Agreement. On or before the Closing Date,
Shareholders shall execute the Registration Rights Agreement substantially in
the form of Exhibit G hereto.
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ARTICLE 8
CONDITIONS PRECEDENT TO CLOSING
8.1. Conditions of FNFI. FNFI's obligations hereunder are subject to the
satisfaction, at or prior to the Effective Time, of all of the following
conditions:
(a) Representations and Warranties True: Performance of
Obligations. The representations and warranties made by Company and Shareholders
in this Agreement shall be true and correct on and as of the Closing Date with
the same force and effect as if they had been made on and as of said date; and
Company and Shareholders shall have performed all of the obligations and
complied with each and all of the covenants required to be performed or complied
with by them on or prior to the Effective Time.
(b) Material Adverse Effect. No act, event or condition shall
have occurred after the date hereof which FNFI determines has had or could have
a Material Adverse Effect.
(c) Authorizations and Approvals. All authorizations, approvals
or consents from third parties, including from any Governmental Entity, landlord
or other Person, necessary for the consummation of the transactions contemplated
hereby shall have been obtained.
(d) Investigation of Company. FNFI shall have concluded (through
its representatives, accountants, counsel and other experts) a due diligence
investigation of the business, condition (financial and other), properties,
assets, prospects, operations and affairs of Company and shall be satisfied, in
its sole discretion, with the results thereof.
(e) Deliveries. FNFI shall have received from the appropriate
Party or Person, the delivery obligations set forth in Sections 3.3 through 3.5,
below.
(f) Schedules. Shareholders shall cause Company to deliver all of
the Schedules to this Agreement set forth in Article 4 above, and FNFI shall be
satisfied with such Schedules in its absolute and sole discretion.
(g) No Actions. There shall not be instituted and pending or
threatened any Action before any Governmental Entity (i) challenging the Merger
or otherwise seeking to restrain or prohibit the consummation of the
transactions contemplated hereby, or (ii) seeking to prohibit the direct or
indirect ownership or operation by FNFI of all or a material portion of the
business or assets of Company, or to compel FNFI or Company to dispose of or
hold separate all or a material portion of the business or assets of Company or
FNFI.
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(h) Corporate Action. All corporate and other proceedings and
actions taken in connection with the transactions contemplated hereby and all
certificates, opinions, agreements, instruments, releases and documents
referenced herein or incident to the transactions contemplated hereby shall be
in form and substance satisfactory to FNFI and its counsel.
(I) Requisite Regulatory Approvals. All notices or filings
required to be made, all authorizations, permits, certificates, registrations,
consents, approvals or orders required to be obtained, and all waiting periods
required to expire, prior to the consummation of the transactions contemplated
by this Agreement under applicable federal law of the United States or
applicable laws of any state having jurisdiction over the transactions
contemplated by this Agreement or the businesses conducted by the Parties or any
Affiliate or Subsidiary of any Party (collectively, the "Requisite Regulatory
Approvals") shall have been obtained or expired, as the case may be, without the
imposition of any condition which is materially burdensome upon FNFI or any
Party or Person to be affected by such condition.
8.2 Conditions of the Shareholders. Shareholders' obligations hereunder
are subject to the satisfaction, at or prior to the Effective Time, of the
following conditions:
(a) Representations and Warranties True; Performance of
Obligations. The representations and warranties made by FNFI in this Agreement
shall be true and correct at the Closing Date, with the same force and effect as
if they had been made on and as of said date; and FNFI shall have performed all
obligations herein required to be performed by it at or prior to the Closing.
(b) Authorizations and Approvals. All authorizations, approvals
or consents, if any, from third parties, including from any Governmental Entity
or other Person, necessary for the consummation of the transactions contemplated
hereby shall have been obtained.
ARTICLE 9
TERMINATION, AMENDMENT AND WAIVER
9.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time:
(a) By mutual consent of the FNFI and Shareholders;
(b) By Shareholders, acting together, or by FNFI, by written
notice to the other Party or Parties hereto if the Closing has not occurred on
or before
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September 1, 1997, (or such later date as FNFI and Shareholders may agree),
provided that in the case of a termination under this clause, the Party or
parties terminating this Agreement shall not then be in material breach of any
or its or their obligations under this Agreement.
(c) By FNFI if (i) there has been a material misrepresentation,
breach of warranty or breach of covenant by Company or any Shareholder under
this Agreement; or (ii) any of the conditions precedent to Closing set forth in
Section 8.1 have not been met on the Closing Date, and, in each case, FNFI is
not then in material default of its obligations hereunder; or
(d) By Shareholders acting together if (i) there has been a
material misrepresentation, breach of warranty or breach of covenant by FNFI and
Newco under this Agreement; or (ii) any of the conditions precedent to Closing
set forth in Section 8.2 have not been met on the Closing Date, and, in each
case, no Shareholder is then in material default of his obligations hereunder.
9.2 Effect of Termination.
(a) In the case of any termination of this Agreement, the
provisions of Section 7.3 and 7.4 shall remain in full force and effect.
(b) Upon termination of this Agreement as provided in Section
9.1(a), except as stated in subsection (a) above, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of any
Party hereto or their respective directors, officers, employees, agents or other
representatives.
(c) In the event of termination of this Agreement as provided in
Section 9.1(b), (c) or (d) hereof, such termination shall be without prejudice
to any rights that the terminating party or parties may have against the
breaching party or parties or any other person under the terms of this Agreement
or otherwise.
9.3 Amendment. This Agreement may be amended at any time by a written
instrument executed by the Parties. Any amendment effected pursuant to this
Section 9.3 shall be binding upon all Parties.
9.4 Waiver. Any term or provision of this Agreement may be waived in
writing at any time by the Party or Parties entitled to the benefits thereof.
Any waiver effected pursuant to this Section 9.4 shall be binding upon all
Parties hereto. No failure to exercise and no delay in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege preclude the exercise of any
other right, power or privilege. No waiver of any breach of any covenant or
agreement hereunder shall be deemed a waiver of a
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preceding or subsequent breach of the same or any other covenant or agreement.
The rights and remedies of each Party under this Agreement are in addition to
all other rights and remedies, whether at law, in equity or otherwise, that such
Party may have against the other Parties.
ARTICLE 10
INDEMNIFICATION
10.1 Survival of Representations and Warranties. The representations and
warranties of Company and Shareholders hereto contained in this agreement or in
any writing delivered pursuant hereto or at the Closing shall survive the
Closing and the consummation of the transactions contemplated hereby until the
fourth (4th) anniversary of the Closing Date; provided that the representations
and warranties contained in Sections 4.2, 4.4, 4.11 and 4.20 shall not terminate
but shall continue indefinitely; and provided further that Company's
indemnification obligations under Section 10.2, below, shall terminate
immediately subsequent to the Effective Time.
10.2 Indemnification by Company and Shareholders. Company and
Shareholders, in accordance with Section 10.7, below, shall indemnify and hold
harmless FNFI from and against any Damages arising out of or relating to: (i)
any inaccuracy in or breach of any representation or warranty made by Company or
any Shareholder in this Agreement or in any writing delivered pursuant to this
Agreement or at the Closing; or (ii) the failure of Company or any Shareholder
to perform or observe fully any covenant, agreement or provision to be performed
or observed by Company or such Shareholder pursuant to this Agreement.
10.3 Indemnification by FNFI. FNFI shall indemnify, defend and hold
harmless Shareholders from and against any Damages arising out of or related to:
(i) any inaccuracy in or breach of any representation or warranty made by FNFI
or Newco in this Agreement or in any writing delivered pursuant to this
Agreement or at the Closing; or (ii) the failure by FNFI or Newco to perform or
observe any covenant, agreement or condition to be performed or observed by it
pursuant to this Agreement.
10.4 Third Party Claims. In the event any third party asserts any claim
with respect to any matter as to which the indemnities in this Agreement relate,
the party against whom the claim is asserted (the "Indemnified Party") shall
give prompt notice to the other party (the "Indemnifying Party"), and the
Indemnifying Party shall have the right at its election to take over the defense
or settlement of the third party claim at its own expense by giving prompt
notice to the Indemnified Party. If the Indemnifying Party does not give such
notice and does not proceed diligently so to defend the third party claim within
thirty (30) days after receipt of the notice of the third party claim, the
Indemnifying Party shall be bound by any defense or settlement that the
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Indemnified Party may make as to those claims and shall reimburse the
Indemnified Party for its losses and expenses related to the defense or
settlement of the third party claim. The Parties shall cooperate in defending
against any asserted third party claims. For purposes of this Section 10.4, the
indemnification of the Indemnified Party shall also include the indemnification
of the Indemnified Party's employees, agents, affiliates, and third parties
performing services for the Indemnified Party, and the reference to this
Agreement includes any certificate, Schedule, Exhibit, list, summary or other
information provided or delivered to a party by the Indemnifying Party or its
agents and affiliates in connection with this Agreement.
10.5 Indemnification Non-Exclusive. The foregoing indemnification
provisions are in addition to, and not in derogation of, any statutory,
equitable or common-law remedy any Party may have for breach of representation,
warranty, covenant or agreement.
10.6 Limitation on Indemnification Claims. Notwithstanding anything to
the contrary in this Article 10, FNFI's indemnification claims against
Shareholders or Company in connection with those litigation and claim matters
specifically set forth in Schedule 4.24, shall (i) be limited to a maximum
recovery of One Hundred Twenty Thousand Dollars ($120,000); and (ii) shall not
arise until such time as such claims, in the aggregate, exceed Two Hundred
Eighty Thousand Dollars ($280,000).
10.7 Allocation of Shareholder Indemnities. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, jointly and severally, shall be responsible for ninety percent (90%)
of any and all indemnity claims arising under Section 10.2, above, and T. ▇▇▇▇▇
▇▇▇▇▇▇ shall be responsible for ten percent (10%) of any and all such claims.
ARTICLE 11
GENERAL PROVISIONS
11.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents, made and to be performed entirely within the State of
California.
11.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
Parties hereto.
11.3 Entire Agreement. This Agreement, the exhibits and schedules
hereto, and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement among the Parties with regard to the
subject matter hereof and no Party shall be liable or bound to any other Party
in any manner by any representations, warranties, covenants, or agreements
except as specifically set forth herein or therein. Nothing in this
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Agreement, express or implied, is intended to confer upon any party, other than
the Parties hereto and their respective successors and assigns, any rights,
remedies, obligations, or Liabilities under or by reason of this Agreement,
except as expressly provided herein.
11.4 Severability. In the event any provision of this Agreement shall be
invalid, illegal, or unenforceable, it shall, to the extent practicable, be
modified so as to make it valid, legal and enforceable and to retain as nearly
as practicable the intent of the Parties, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
11.5 Notice. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given (i) if
delivered personally (including by overnight express or messenger), upon
delivery; (ii) if delivered by registered or certified mail, return receipt
requested, upon the earlier of actual delivery or three (3) days after being
mailed; or (iii) if given by facsimile, upon confirmation of transmission by
facsimile, in each case to the Parties at the following addresses:
(a) If to FNFI, addressed to:
Fidelity National Financial, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Shareholders and Company, addressed to:
First Title Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
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11.6 Construction. The Parties to this Agreement have participated
jointly in the negotiation and drafting of this Agreement and have had competent
counsel of their own choosing. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement.
11.7 Headings. The headings of the paragraphs and subparagraphs of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
11.9 Recitals, Schedules, and Exhibits. The Recitals, Schedules and
Exhibits to this Agreement are incorporated herein and, by this reference, made
a part hereof as if fully set forth at length herein.
11.10 Covenant Not-To-Compete. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ covenants and agrees that
for a period of two (2) years following the Closing Date, he will not, without
the prior written consent of Surviving Corporation and FNFI, directly or
indirectly, engage or have an interest in (as owner, partner, shareholder,
employee, director, officer, consultant or otherwise), with or without
compensation, any business (i) in direct competition with the businesses being
conducted by Surviving Corporation or FNFI; and (ii) within 100 miles of any
office of Surviving Corporation.
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IN WITNESS WHEREOF, the foregoing Agreement is hereby executed as of the
date first above written.
FNFI:
FIDELITY NATIONAL FINANCIAL, INC.,
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Its: EXECUTIVE VICE PRESIDENT
COMPANY:
FIRST TITLE CORPORATION,
a Tennessee Corporation
By:
----------------------------------
Its:
----------------------------------
SHAREHOLDERS:
----------------------------------------
▇. ▇▇▇▇▇. Jordan
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
NEWCO:
FIRST TITLE ACQUISITION CORPORATION,
a Tennessee Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Its: President
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IN WITNESS WHEREOF, the foregoing Agreement is hereby executed as of the
date first above written.
FNFI:
FIDELITY NATIONAL FINANCIAL, INC.,
a Delaware Corporation
By:
----------------------------------
Its:
----------------------------------
COMPANY:
FIRST TITLE CORPORATION,
a Tennessee Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Its: Chairman/CEO
SHAREHOLDERS:
/s/ T. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇. ▇▇▇▇▇. Jordan
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
BY: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
NEWCO:
FIRST TITLE ACQUISITION CORPORATION,
a Tennessee Corporation
By:
----------------------------------
Its:
----------------------------------
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