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EXHIBIT 10.48
AGREEMENT AND PLAN OF REORGANIZATION
DATED: SEPTEMBER ___, 1997
BY AND AMONG
FIDELITY NATIONAL FINANCIAL, INC.
ICS IFLAND CREDIT SERVICES, INC.
▇▇▇▇ ▇. ▇▇▇▇▇▇
AND
ICS ACQUISITION CORPORATION
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EXHIBIT 10.48
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of this ___ day of September, 1997, by and among FIDELITY
NATIONAL FINANCIAL, INC., a Delaware corporation ("FNFI"); ICS IFLAND CREDIT
SERVICES, INC., a Kentucky corporation ("Company"); ▇▇▇▇ ▇. ▇▇▇▇▇▇
("Shareholder"); and ICS ACQUISITION CORPORATION, a Kentucky corporation that is
a newly-formed, wholly-owned subsidiary of FNFI ("Newco"). FNFI, Company,
Shareholder and Newco are referred to collectively herein as the "Parties" or
singularly as a"Party."
RECITALS
A. Shareholder is the record and beneficial owner of 1,000 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
Kentucky.
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
CERTAIN 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.
"Claims" shall mean any and all liabilities, losses, claims, damages,
causes of action, lawsuits, administrative proceedings (including informal
proceedings), investigations, audits, demands, assessments, adjustments,
judgments, settlement payments, deficiencies, penalties, fines, interest
(including interests from the date of such damages), and costs and expenses
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(including without limitation reasonable attorneys' fees and disbursements of
every kind, nature and description).
"Closing" has the meaning set forth in Section 3.1, below.
"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 Date.
"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.
"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 non-registered, restricted
Common Stock, par value of $0.0001 per share, of FNFI.
"Fidelity Shares" means $3,000,000 of Fidelity Common Stock, either held
in treasury and transferred to Shareholders or newly issued by FNFI to
Shareholders, the exact number of shares of which shall be equal to 3,000,000
divided by the Closing Fidelity Price.
"GAAP" means, 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.
"Intellectual Property" means (i) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof; (ii) all trademarks, service marks,
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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.
"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.
"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).
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"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.
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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 Kentucky (the
"Kentucky Statute"). Company, as it exists from and after the Effective Time, is
sometimes referred to herein as the "Surviving Corporation."
(b) Effect or 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 Kentucky
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 Kentucky 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 Kentucky 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
Shareholder, 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.
(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
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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 subsection (d), 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 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 the Certificates in accordance with
subsection (f), below.
(d) Consideration. In consideration for the cancellation and
exchange by Shareholder of the Company Shares and in accordance with subsection
(e), below, (i) Newco shall pay to Shareholder the cash sum of Seven Hundred
Fifty Thousand Dollars ($750,000) (the "Cash Consideration"), and (ii) FNFI
shall issue to Shareholder the Fidelity Shares.
(e) 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 Shareholder 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 Shareholder;
and (ii) FNFI shall, as soon as practicable after the Effective Time, issue and
deliver the Fidelity Shares to Shareholder.
(f) Certificate Delivery Requirement. At the Effective Time,
Shareholder shall deliver to FNFI the certificates (the "Certificates")
representing the Company Shares, duly endorsed in blank by Shareholder, 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 (f), each
Certificate shall be deemed at any time after the Effective Time to represent
the right to receive upon such surrender a pro rata portion of the Cash
Consideration and the Fidelity Shares.
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
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(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 Kentucky in
accordance with the provisions of the Kentucky 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 Kentucky.
3.2 Mutual Deliveries at Closing. 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, 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 Agreement in substantially the form of
Exhibit B hereto; and
(b) The Registration Rights Agreement substantially in the form
of Exhibit C hereto.
3.4. Shareholder's Deliveries at Closing. Provided that all of the
conditions to the Closing set forth in Article 8, below, have been satisfied or
waived by the Party benefiting therefrom, Shareholder 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(f), 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 Article 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 Officers' Certificate dated the Closing Date
substantially in the form of Exhibit D hereto;
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(b) A Secretary's Certificate dated the Closing Date
substantially in the form of Exhibit E hereto;
(c) An opinion of counsel substantially in the form of Exhibit F
hereto;
(d) A Restated Amendment to Lease Agreement substantially in the
form of Exhibit G hereto;
(e) 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;
(f) Minutes of the Board of Directors and shareholders of Company
authorizing and approving this agreement and the transactions
contemplated herein;
(g) Resignations of all of the officers and directors of Company
effective as of the Closing Date; and
(h) 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.
3.6 FNFI's Deliveries at Closing. Provided that all of the conditions to
the Closing set forth in Article 8, below, have been satisfied or waived by the
Party benefiting therefrom, FNFI shall execute and deliver or cause to be
delivered to Shareholder the following:
(a) The Fidelity Shares in accordance with Section 2.2(e),
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 Article 8, below, have been satisfied or waived by the
Party benefitting therefrom, Newco shall deliver to Shareholder at the Closing
the Cash Consideration in accordance with Section 2.2(e), above.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF COMPANY AND SHAREHOLDER
Company and Shareholder, jointly and severally, represent and warrant
to FNFI, Newco and Surviving Corporation that (except for changes contemplated
by this Agreement), each of the following statements is true, correct and
complete as of the date of this Agreement and will be true, correct and complete
as of the Closing Date (each such statement to be made again by Company and
Shareholder on that date with the Closing Date being substituted for the date of
this Agreement throughout this Article 4):
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 Kentucky, 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. 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 Shareholder's obligations hereunder and
thereunder, and for the exchange and cancellation 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 Shareholder enforceable in
accordance with their respective terms, subject to laws of general application
relating to bankruptcy, insolvency and the relief of debtors and subject to the
availability of equitable remedies.
4.3 Subsidiaries. Company has no Subsidiaries and does not presently
own, of record or beneficially, or control, directly or indirectly, any capital
stock, securities convertible into capital stock or any other equity interest in
any corporation, association or business entity, nor is the Company, directly or
indirectly, a participant in any joint venture, partnership or other entity.
4.4 Capitalization. The authorized capital stock of Company consists of
2,000 shares of Common Stock, no par value, of which 1,000 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
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Shareholder in the amounts set forth in Schedule 4.4 hereto, free and clear of
all Liens, Indebtedness 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
statute, or by Company's charter documents, 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. Schedule 4.5 hereto includes (i) true,
complete and correct copies of Company's balance sheet as of December 31, 1996
(the end of its most recently completed fiscal year) and statements of income
and retained earnings for the year ended December 31, 1996; and (ii) true,
complete and correct copies of Company's balance sheet as of July 31, 1997, and
statements of income and retained earnings for the period then ended. Except as
set forth on Schedule 4.5 hereto, the above described financial statements have
been prepared in accordance with GAAP consistently applied and fairly present
the financial position of Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended, subject, in the case of
the July 31, 1997 financial statements, to the omission of complete footnote
information. There are no Company Liabilities, direct or indirect, fixed or
contingent, which are not reflected in the balance sheet as of July 31, 1997,
except for Liabilities 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
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which, either individually or in the aggregate, would be material. Since the
date of the July 31, 1997 financial statements, there have been no material
changes in Company's accounting policies.
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 Shareholder 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 Shareholder, 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 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, below) owned or
leased by 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's business. All
of the vehicles, material machinery and equipment of Company are in good working
order and condition, ordinary wear and tear excepted.
4.8 Real Property. Company does not own any real property. Schedule 4.8
hereto contains an accurate list and general description of all real property
leases, subleases, licenses or similar agreements ("Leases") to which Company is
a party
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(copies of which have been previously furnished to FNFI), in each case setting
forth (i) the landlord and tenant or sublessor and sublessee, as applicable,
thereof and the date and term of each of the Leases; (ii) the legal description
or street address of each property covered thereby; and (iii) a brief
description (including size and function) of the principal improvements and
buildings thereon (the "Leased Premises"). Company has valid leasehold interests
in the Leased Premises, 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 the Leases; (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. The activities of Company, with
respect to the Leased Premises, are in all material respects permitted and
authorized by applicable zoning laws, ordinances and regulations and all laws
and regulations of any Governmental Entity. To the best knowledge of Company and
Shareholder, the portions of the buildings on the Leased Premises that are used
in the business of Company are each in good repair and condition (including
without limitation, the electrical, mechanical, HVAC, plumbing, elevator, other
building systems and structural components serving such premises, and the roofs
are water-tight), and are in the aggregate sufficient to satisfy Company's
current and reasonable anticipated normal business activities as conducted
thereat.
4.9 No Conflicts. Neither the execution and delivery nor the performance
of this Agreement by Company or Shareholder 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 Shareholder 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 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 Shareholder; (iii) the creation or
imposition of any Lien on any of the respective assets or properties of Company
or Shareholder or any 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 Shareholder 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 Shareholder), which question the validity
of this Agreement or any action taken or to be taken in connection herewith, or
which, Company individually or in the aggregate, might result in a Material
Adverse Effect, or
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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 Shareholder) 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 age, tenure with
Company, title or job classification, and the current annual 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 Shareholder, 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 Shareholder in connection with the valid execution and delivery of this
Agreement and the exchange and cancellation of the Company Stock, or the
consummation of any other transaction contemplated hereby have been obtained, or
will be effective at the Closing, 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.
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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
Shareholder, threatened, nor has any governmental entity indicated to Company an
intention to conduct the same.
4.16 Insurance. Schedule 4.16 hereto sets forth an accurate list, as of
July 31, 1997, of all insurance policies carried by Company and all insurance
loss runs or workmen's compensation claims received for the past two (2) policy
years. Attached to Schedule 4.16 hereto are true, complete and correct copies of
the summaries from the insurance company of all current insurance policies, all
of which are in full force and effect. All premiums payable under all such
policies have been paid and Company is otherwise in full compliance with the
terms of such policies (or other policies providing substantially similar
insurance coverage). To the best knowledge of Company and Shareholder, such
policies of insurance are of the type and in amounts carried by Persons
conducting businesses similar to that of Company. Neither Company nor
Shareholder knows of any threatened termination of or material premium increase
with respect to, any of such policies. All claims previously made under such
policies have been timely filed.
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,
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any of the outstanding shares of the Company Common Stock by Shareholder; (iv)
any amendment, termination or revocation, or any threat of any amendment,
termination, or revocation having a Material Adverse Effect, of any 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; (viii) any purchase or 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; (ix) any change that
by itself or together with other changes, has had a Material Adverse Effect; (x)
any agreement or arrangement made by Company or Shareholder to take any action
which, if taken prior to the date hereof, would have made any representation or
warranty set forth in this Agreement untrue or incorrect as of the date when
made; or (xi) the commencement or notice or, to the best knowledge of Company
and Shareholder, threat of commencement of any lawsuit or proceeding against or
investigation of Company or any of its affairs.
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
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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 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
Shareholder, 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 Shareholder, 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 to so 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,
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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 Shareholder's knowledge, all
properties used in its business are free of Hazardous Substances, except where
the existence thereof would not have a Material Adverse Effect.
4.21 Certain Transactions. There are no existing or pending
transactions, nor are there any agreements or understandings, between Company,
or Shareholder, 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. Shareholder is receiving the Fidelity
Shares for his 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. Shareholder 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. Shareholder has no claims
against the Company.
4.24 Bank Accounts; Powers of Attorney. Schedule 4.24 hereto sets forth
an accurate list, as of the date of this Agreement, of the following: (i) the
name of each financial institution in which Company has any account or safe
deposit box; (ii) the names in which the accounts or boxes are held; (iii) the
type of account; and (iv) the name of each person authorized to draw thereon or
have access thereto. Schedule 4.24 hereto also sets forth the name of each
Person holding a general or special power of attorney from Company and a
description of the terms of such power.
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 Real Property Leased by Shareholder to Company. The Leased Premises
of Company located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Lexington Property"), is owned by Shareholder and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Company is
not a party, whether as obligor, guarantor or otherwise, to any Indebtedness or
any
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other agreement or obligation (other than the Lease described in Schedule 4.8
hereto), that in any way relates to or is secured by the Lexington Property, and
no assets of Company have been pledged as security for any such Indebtedness or
other agreement or obligation.
4.27 Brokers' Fees. Neither Company nor Shareholder has any Liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
4.28 Full Disclosure. Neither this Agreement, the representations and
warranties by Company and/or Shareholder 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 Shareholder 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.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF FNFI
FNFI and Newco represent and warrant to Company and Shareholder that
(except for changes contemplated by this Agreement) each of the following
statements is true, correct and complete as of the date of this Agreement and
will be true, correct and complete as of the Closing Date (each such statement
to be made again by FNFI and Newco on that date with the Closing Date being
substituted for the date of this Agreement throughout this Article 5):
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 Kentucky, 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
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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 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
Shareholder 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
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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 Shareholder, 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.
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 July 31, 1997. 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) except as provided in
Section 7.1(g), below, 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
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convertible into or exchangeable for such shares; or (vi) liquidate or dissolve
or obligate itself to do so.
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.
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.
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6.10 Capital Expenditures. 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.
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 Shareholder. During the period from the
date hereof through the Closing Date, Company and Shareholder 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;
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(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 Company and/or Shareholder 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 untrue statement or omission shall not
prevent FNFI from terminating this Agreement pursuant to Section 9.1(b) hereof
at any time at or prior to the Closing in respect of any original untrue or
misleading statement;
(f) Obtain the release of Company or any assets of Company from
any Indebtedness, Liability, Lien or Security Interest incurred by Company that
in any way relates to the Lexington Property, except for any obligations
expressly incurred by Company under the Lease described in Schedule 4.8 hereto;
(g) Effect and consummate the merger of MicroCEL International
Corp., a Kentucky corporation ("MicroCEL), with and into Company in accordance
with the Kentucky Statute and upon such terms and conditions and in accordance
with such documentation pre-approved by FNFI in its absolute and sole
discretion. Upon the consummation of the above-described merger (i) all of the
assets and liabilities of MicroCEL existing as of July 31, 1997 (other than
assets and liabilities acquired or disposed of in the Ordinary Course of
Business) shall be merged into Company; and (ii) all of the capital stock of
MicroCEL, including all options, warrants, calls, conversions rights,
commitments or agreements of any character which relate to such capital stock,
shall be canceled and extinguished; and
(h) Shareholder shall at or prior to the Closing pay in full all
outstanding Indebtedness owed by Shareholder to Company.
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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, Shareholder in
connection with any such requirements imposed upon the Shareholder 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, Shareholder 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.
(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 Shareholder 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 Shareholder 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 Shareholder or Company; or (iv) is made
available by Shareholder or Company to any other Person on a non-restricted
basis. FNFI's
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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 Responsibility for Certain Potential Liabilities. Shareholder shall
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).
7.5 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.
7.6 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.
7.7 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 7.7. 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.
7.8 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 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, Shareholder
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.
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7.9 Competing Offers. Shareholder agrees that he 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 Shareholder
will not, and will not permit Company to, engage any broker, financial adviser
or consultant to initiate or encourage proposals or offers from other Persons.
Furthermore, Shareholder 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
7.9. Shareholder shall ensure that Company shall not commence any proceeding to
merge, consolidate or liquidate or dissolve or obligate itself to do so.
7.10 Post-Termination Employment. Company and Shareholder 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.
7.11 Employment Agreement. On or before the Closing Date, Shareholder
and the appropriate officer of Company shall execute the Employment Agreement
substantially in the form of Exhibit B hereto.
7.12 Registration Rights Agreement. On or before the Closing Date,
Shareholder and FNFI shall execute the Registration Rights Agreement
substantially in the form of Exhibit C hereto.
7.13 Restated Amendment to Lease Agreement. On or before the Closing
Date, Company and the appropriate Persons shall execute the Restated Amendment
to Lease Agreement substantially in the form of Exhibit G hereto.
ARTICLE 8
CONDITIONS PRECEDENT TO CLOSING
8.1. Conditions of FNFI. FNFI's obligations hereunder to consummate the
Merger 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 Shareholder
in this Agreement shall be true, correct and complete on and as of the Closing
Date
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with the same force and effect as if they had been made on and as of said date;
and Company and Shareholder 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 in its absolute and
sole discretion 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 absolute and 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. Shareholder 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.
(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.
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(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.
(j) FNFI Board Approval. The approval by the board of Directors
of FNFI of this Agreement and the transactions contemplated thereby.
8.2 Conditions of Company and Shareholder. Company's and Shareholder's
obligations hereunder to consummate the Merger 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 and Newco 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 and Newco 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 Shareholder;
(b) By Shareholder and Company as a group, on the one hand, or by
FNFI, on the other hand, if there has been a material breach, failure to fulfill
or default on the part of the other Party of any of the representations and
warranties contained herein or in the due and timely performance and
satisfaction of any of the covenants, agreements or conditions contained herein;
or
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(c) By Shareholder and Company as a group, on the one hand, or by
FNFI, on the other hand, if there shall be a final non-appealable order of a
federal or state court in effect preventing consummation of the Merger; or there
shall be any action taken, or any statute, rule, regulation or order enacted,
promulgated or issued or deemed applicable to the Merger by any Governmental
Entity which would make the consummation of the Merger illegal.
9.2 Effect of Termination. In the case of any termination of this
Agreement pursuant to Section 9.1, above, this Agreement shall forthwith become
void, and there shall be no Liability or obligation on the part of any Party or
its officers, directors or shareholders. Notwithstanding the foregoing sentence,
(i) the provisions of Section 7.3 and 7.5 shall remain in full force and effect
and survive any termination of this Agreement; (ii) each Party shall remain
liable for any breach of this Agreement prior to its termination; and (iii) in
the event of termination pursuant to section 9.1(b), above, then notwithstanding
the provisions of Section 7.5, above, the breaching Party shall be liable to the
non-breaching Party to the extent of the expenses incurred by such other party
in connection with this Agreement and the transactions contemplated thereby.
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 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 Indemnification by Company and Shareholder. Company and
Shareholder, jointly and severally, covenant and agree to indemnify, defend,
protect and hold harmless FNFI, Newco and Surviving Corporation and their
respective officers, directors, employees, shareholders, assigns, successors and
affiliates (a "FNFI Indemnified Party") from, against and in respect of:
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(a) All Claims suffered, sustained, incurred or paid by any FNFI
Indemnified Party in connection with resulting from or arising out of, directly
or indirectly:
(i) any breach of any representation or warranty of
Shareholder or Company set forth in this Agreement or any certificate, document
or instrument delivered by or on behalf of Shareholder or Company in connection
herewith;
(ii) any non-fulfillment of any covenant or agreement on
the part of Shareholder or Company in this Agreement; or
(iii) the business, operations or assets of Company prior
to the Closing Date, except as otherwise disclosed in the financial statements
set forth on Schedule 4.5 hereto; and
(b) Any and all Claims incident to any of the foregoing or to the
enforcement of this Section 10.1.
Payment shall not be a condition precedent to recovery under the above
indemnities. The indemnification obligations set forth above or in any writing
delivered by Company and/or Shareholder pursuant hereto or at the Closing shall
survive the Closing and the consummation of the transactions contemplated hereby
until the third (3rd) anniversary of the Closing Date; provided, however, that
the indemnification obligations with respect to the representations and
warranties contained in Sections 4.2, 4.4, 4.11 and 4.20, and the covenants
contained in Sections 7.1(f), 7.1(g) and 7.4 shall not terminate but shall
continue indefinitely; and provided further that Company's indemnification
obligations under this Section 10.1 shall terminate immediately subsequent to
the Effective Time.
10.2 Indemnification by FNFI. FNFI covenants and agrees to indemnify,
defend, protect and hold harmless Shareholder and his heirs, successors and
assigns (a "Shareholder Indemnified Party") from, against and in respect of:
(a) All Claims suffered, sustained, incurred or paid by any
Shareholder Indemnified Party in connection with resulting from or arising out
of, directly or indirectly:
(i) any breach of any representation or warranty of FNFI
or Newco set forth in this Agreement or any certificate, document or instrument
delivered by or on behalf of FNFI or Newco in connection herewith; or
(ii) any non-fulfillment of any covenant or agreement on
the part of FNFI or Newco in this Agreement; and
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(b) Any and all Claims incident to any of the foregoing or to the
enforcement of this Section 10.2.
Payment shall not be a condition precedent to recovery under the above
indemnities.
10.3 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 or Person against whom the claim is asserted (the "Indemnified Party")
shall give prompt notice to the other Party or Person (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 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 Article 10, 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.
10.4 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.
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 Shareholder and Company, addressed to:
ICS Ifland Credit Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇ PLLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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11.6 Construction. 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 Tax Advice. Company and Shareholder acknowledge that they have
received their own independent tax advice with respect to the Merger, this
Agreement and the transactions contemplated thereby, including whether the
Merger qualifies as a tax free reorganization in accordance with Section 368(a)
of the Code, and are not in any way relying on any statements or advice of FNFI,
Newco or any of their officers, directors, employees, agents or representatives.
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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:
ICS IFLAND CREDIT SERVICES, INC.,
a Kentucky Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: PRESIDENT
-----------------------------------
SHAREHOLDER:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
NEWCO:
ICS ACQUISITION CORPORATION,
a Kentucky Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: VICE PRESIDENT
-----------------------------------
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