Exhibit 10.4
TAX MATTERS AGREEMENT
between
FIDELITY NATIONAL FINANCIAL, INC.
and
FIDELITY NATIONAL TITLE GROUP, INC.
dated as of September 27, 2005
TAX MATTERS AGREEMENT
THIS TAX MATTERS AGREEMENT (this "Agreement"), dated as of September 27,
2005, by and among FIDELITY NATIONAL FINANCIAL, INC. ("FNF"), a Delaware
corporation, and FIDELITY NATIONAL TITLE GROUP, INC. ("FNT"), a Delaware
corporation and currently a subsidiary of FNF, is entered into as of the date
last executed by the undersigned parties.
RECITALS
WHEREAS, as set forth in the resolutions of the Board of Directors of FNF
dated May 16, 2005, FNF intends to distribute to its shareholders, on a pro rata
basis, Class A Common Stock of FNT representing 17.5% of its outstanding common
stock, on a date to be determined ("Distribution Date");
WHEREAS, FNF is the common parent of the affiliated group of corporations
(the "Affiliated Group") within the meaning of Section 1504(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), which includes FNT and the FNT
Subsidiaries; and
WHEREAS, FNF is party to a Tax Sharing Agreement which includes FNT and
the FNT Subsidiaries;
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1. DEFINITIONS.
1.1 In General. As used in this Agreement, the following capitalized terms
shall have the following meanings:
"Affiliated Group" has the meaning set forth in the Recitals.
"Agreement" has the meaning set forth in the Preamble hereto.
"Code" has the meaning set forth in the Recitals to this Agreement.
"Combined Return" means any state or local Tax Return filed on a
consolidated, combined, unitary or other similar basis wherein any FNT
Subsidiary joins in the filing of such Tax Return (for any Taxable Year) with a
member of the Affiliated Group that is not an FNT Subsidiary.
"Combined State Tax Liability" means the Tax imposed by a State or
political subdivision thereof which (i) is imposed on, or measured by, gross or
net receipts, income, capital or net worth, including State and local franchise
or similar Taxes measured by net income, excluding any telecommunications, gross
receipts (other than Taxes on gross receipts that are imposed in lieu of a Tax
on net receipts) and other transaction taxes and (ii) is computed on a
consolidated, unitary, or combined basis by reference to the income and/or
activities of a
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member of the Affiliated Group other than the FNT Subsidiaries, on the one hand,
and one or more FNT Subsidiaries on the other.
"Consolidated Federal Tax Liability" means the Federal Income Tax
liability of the Affiliated Group.
"Consolidated Return" means any Federal Income Tax Return of the
Affiliated Group filed on a consolidated basis pursuant to Section 1501 of the
Code.
"Covered Insurance Company" means any FNT Subsidiary that has separately
entered into a written Tax Sharing Agreement with FNF and filed that Tax Sharing
Agreement with a State Insurance Commissioner, for the period that Tax Sharing
Agreement remains in effect.
"Distribution Date" has the meaning set forth in the Preamble to this
Agreement.
"Federal Income Tax" means any Tax imposed under Subtitle A of the Code
(including the Taxes imposed by Sections 11, 55, 831 and 1201(a) of the Code),
and any interest, additions to Tax or penalties applicable or related thereto,
and any other income-based U.S. federal Tax which is hereinafter imposed upon
corporations.
"Final Determination" means with respect to any issue (a) a decision,
judgment, decree, or other order by the United States Tax Court or any other
court of competent jurisdiction that has become final and unappealable, (b) a
closing agreement under Section 7121 of the Code or a comparable provision of
any state, local or foreign Tax law that is binding against the Service or any
other Tax Authority, (c) any other final settlement with the Service or other
Tax Authority, or (d) the expiration of the applicable statute of limitations.
"FNT" has the meaning set forth in the Preamble to this Agreement.
"FNF" has the meaning set forth in the Preamble to this Agreement.
"FNT Combined State Tax Liability" means the amount that the receipts,
income, or net worth of any FNT Subsidiary other than any Covered Insurance
Subsidiary resulted in, or increased the Combined State Tax Liability, with any
remaining Tax allocated between FNF and FNT on the basis which the FNT
Subsidiary's relative attribute (positive or negative) was taken into account in
determining the Combined State Tax Liability.
"FNT Subsidiary" means any member of the Affiliated Group for which FNT,
directly or indirectly, beneficially owns more than 50% of the equity interest
or the voting control.
"FNT Sum of Hypothetical Tax Liabilities" means, for any Taxable Year, the
sum of the Hypothetical Tax Liability for each FNT Subsidiary, EXCEPT that any
FNT Subsidiary that is a Covered Insurance Company shall be excluded from such
calculation.
"Hypothetical Tax Liability" means, for any Taxable Year, the Tax
Liability that an FNT Subsidiary would have had for such Taxable Year if it had
filed its own separate federal income tax return for such Taxable Year, taking
into account any carryovers to, or carrybacks from, other Taxable Years of the
FNT Subsidiary. In computing each FNT Subsidiary's separate Tax
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Liability, (i) in the case of any item of income, gain, loss, deduction or
credit that is computed or subject to a limitation only on a consolidated basis,
including but not limited to, charitable contributions, capital losses
("Consolidated Items"), foreign tax credits, research and experimentation credit
and Section 1231 gains and losses, such Consolidated Item shall be taken into
account by the FNT Subsidiary to the extent (determined by FNF on any reasonable
basis) that a Consolidated Item is taken into account and actually affects the
amount of the Tax Liability of the Affiliated Group; (ii) in the case of the
treatment of an item subject to an election made only on a consolidated basis,
the treatment will be governed by the election made by FNF on the consolidated
return; (iii) all intercompany transactions (as defined in Treasury Regulation
Section 1.1502-13(b)(1)) between Subsidiaries shall be taken into account at the
time when such transactions are required to be taken into account by the FNT
Group under Treasury Regulation Section 1.1502-13; and (iv) any Consolidated
Item not initially taken into account in computing the Tax of each FNT
Subsidiary is shall be taken into account by each FNT Subsidiary in the year,
and to the extent that such Consolidated Item is taken into account by the
Affiliated Group; and (v) the FNT Subsidiary is treated as subject to tax on all
of its Taxable Income at the applicable maximum rate specified in the Code but
without the benefit of any surtax exemption.
"Service" means the Internal Revenue Service.
"Subsidiary" means a member of the Affiliated Group other than FNF.
"Tax" means any net income, gross income, gross receipts, alternative or
add-on minimum, sales, use, ad valorem, franchise, profits, license,
withholding, payroll, employment, excise, transfer, recording, severance, stamp,
occupation, premium, property, environmental, estimated, custom duty, or other
tax, governmental fee or other like assessment or charge of any kind whatsoever,
together with any interest and any penalty, addition to Tax or additional amount
imposed by a Taxing Authority.
"Tax Authority" means any governmental authority or any subdivision,
agency, commission or authority thereof or any quasi-governmental or private
body having jurisdiction over the assessment, determination, collection or
imposition of any Tax (including the Service).
"Tax Law" means any federal, state, local or foreign law with respect to
Taxes, including the Code and Treasury Regulations.
"Tax Return" means any return, report, certificate, form or similar
statement or document (including any related or supporting information or
schedule attached thereto and any information return, amended Tax return, claim
for refund or declaration of estimated Tax, including any electronic funds
transfer with respect thereto) supplied to, or filed with, a Tax Authority in
connection with the determination, assessment or collection of any Tax or the
administration of any laws, regulations or administrative requirements relating
to any Tax, including where permitted or required any Tax return filed on a
consolidated, combined, unitary or other similar basis.
"Tax Sharing Agreement" means any tax sharing agreement, arrangement,
policy, or guideline, whether formal or informal, that exists between FNF and
any or all of its Subsidiaries.
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"Taxable Year" means, with respect to any Tax, the period for which the
Tax is reported as provided under the Code or any other applicable Tax Laws.
"Treasury Regulations" means the final and temporary Tax regulations
promulgated under the Code, as such regulations may be amended from time to time
(including corresponding provisions of successor regulations).
1.2 Construction Principles. As used in this Agreement, (a) the singular shall
be deemed to include the plural and vice versa, (b) the captions and section
headings are inserted for convenience of reference only and are not intended to
have any significance for the interpretation of, or construction of, the
provisions of this Agreement, and (c) any reference to any person shall be
deemed to include any predecessor or successor in interest thereto by merger or
otherwise.
ARTICLE 2. TAX RETURNS, TAX SHARING PAYMENTS AND GENERAL TAX ADMINISTRATIVE
MATTERS.
2.1 Filing of Returns. FNF shall prepare (or cause to be prepared) and timely
file (or cause to be timely filed) all Consolidated Returns and all Combined
Returns.
2.2 Payment of Taxes.
(a) For all Taxable Years commencing after the Distribution Date, FNF
shall pay (or cause to be paid) to the appropriate Tax Authority all Taxes, if
any, shown on any Tax Return prepared pursuant to section 2.1.
(b) With respect to any required payment of estimated Federal Income Taxes
(determined under section 6655 of the Code), FNT shall pay to FNF the sum of all
of the hypothetical estimated tax payments that would have been payable if each
of the FNT Subsidiaries had filed its own separate Tax Return for such Taxable
Year, EXCEPT that in computing the sum of all estimated hypothetical tax
liabilities, the hypothetical tax liabilities of all Covered Insurance Companies
shall be excluded. In computing each FNT Subsidiary's hypothetical estimated tax
payment, each payment shall be sufficient to avoid incurring any addition to tax
by FNF under Section 6655 of the Code by reason of an underpayment by a "large
corporation" within the meaning of Section 6655(g)(2) of the Code and shall be
consistent with the elections permitted to be made under Section 6655(d) and (e)
of the Code as actually made by FNT, in its sole discretion, for such Taxable
Year.
(c) FNT shall pay to FNF, or FNF shall pay to FNT, as the case may be, the
difference between the FNT Sum of Hypothetical Tax Liabilities for such Taxable
Year and the amount paid by FNT to FNF pursuant to section 2.2(b) hereof for
such Taxable Year.
(d) If any FNT Subsidiary has a loss or credit on a Federal Income Tax
Return or a Combined Return which could be carried back to and which would
reduce that FNT Subsidiary's Hypothetical Tax Liability for any earlier year for
which it was included in the Affiliated Group, then (i) if, and to the extent
that such loss or credit is utilized to actually reduce the Affiliated Group's
Consolidated Tax Liability for such Taxable Year, FNF shall pay to FNT on the
date the Affiliated Group Federal Consolidated Return is actually filed for such
Taxable Year the amount by which the Hypothetical Tax Liability in such earlier
year is reduced by reason of the
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carryback or (ii) if, and to the extent that such loss or credit is actually
carried back to an earlier taxable year of the Affiliated Group, FNF shall pay
to FNT on the date any refund of tax is actually received the amount by which
the FNT Subsidiary's Hypothetical Tax Liability in such earlier year is reduced
by reason of such carryback, together with any applicable interest.
(e) FNT shall pay to FNF the FNT Combined State Tax Liability if the FNT
Combined State Tax Liability is a positive number. FNF shall pay to FNT the
absolute value of the FNT Combined State Tax Liability if the FNT Combined State
Tax Liability is a negative number.
(f) All settlements under this Agreement shall be made within 30 days of
the filing of the applicable estimated or actual consolidated federal income tax
return with the Internal Revenue Service, except where a refund is due FNF, in
which case, it may defer payment to FNT to within 30 days of receipt of such
refund.
2.3 Agent. In all matters relating to the Affiliated Group's Consolidated Tax
Liability, FNF is the agent for FNT and each FNT Subsidiary. As said agent, FNF
has the sole authority and discretion to make any election for each Subsidiary,
including any election that must be made to determine each Subsidiary's separate
taxable income for purposes of computing the Consolidated Tax Liability of the
Affiliated Group.
2.4 Adjustments. FNT agrees that FNF alone shall be responsible for, and shall
have sole and absolute discretion with respect to, claiming any deductions or
credits not claimed on the Affiliated Group consolidated return as filed, the
filing of any amended returns, agreeing to, contesting, or settling any
adjustments to the Affiliated Group's Consolidated Tax Liability or Combined
State Tax Liability for any Taxable Year covered by this Agreement, and FNF
shall pay any deficiencies in, or receive any refunds of, the Affiliated Group's
Consolidated Tax Liability or Combined State Tax Liability for any such Taxable
Year resulting from a Final Determination. If Consolidated Tax Liability or
Combined State Tax Liability reported on a federal Tax Return is revised by the
Service or other appropriate authority, the Parties to this Agreement shall
recalculate the FNT Sum of Hypothetical Tax Liabilities, FNT shall pay to FNF or
FNF shall pay to FNT, as the case may be, the amount necessary to reflect all
adjustments for any Taxable Year, together with any interest and penalties
fairly attributable thereto.
2.5 Resolution of Disputes as to FNT Sum of Hypothetical Tax Liabilities and
Combined State Taxes. In the event of a disagreement between the parties hereto
as to the amount of the FNT Sum of Hypothetical Tax Liabilities or FNT Combined
State Tax Liability for any Taxable Year, such amount shall be determined by the
independent certified public accountants who audit FNF's certified financial
statements at the time such dispute arises, and the determination of such
accountants shall be final and binding on the parties hereto.
ARTICLE 3. MISCELLANEOUS.
3.1 Effectiveness. This Agreement shall become effective as of the
Distribution Date.
3.2 Notices. All notices and other communications hereunder shall be in writing
and hand delivered or mailed by registered or certified mail (return receipt
requested) or sent by any means
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of electronic message transmission with delivery confirmed (by voice or
otherwise) to the parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice) and will be deemed given on
the date on which such notice is received:
to FNF:
Fidelity National Financial, Inc.
Attention: ▇▇▇▇▇▇▇ ▇▇▇, Senior Vice President - Corporate Tax
Director
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
to FNT:
Fidelity National Title Group, Inc.
Attention: ▇▇▇▇▇▇▇ ▇▇▇, Senior Vice President -- Corporate Tax
Director
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
And to such other persons or places as each party may from time to time
designate by written notice sent as aforesaid.
3.3 Changes in Law.
(a) Any reference to a provision of the Code or any other Tax Law shall
include a reference to any applicable successor provision or law.
(b) If, due to any change in applicable law or regulations or their
interpretation by any court of law or other governing body, performance of any
provision of this Agreement or any transaction contemplated thereby shall become
impracticable or impossible, the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such provision.
3.4 Successors. The provisions to this Agreement shall be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and permitted assigns.
3.5 Assignment. Except for assignments or transfers by operation of law, this
Agreement shall not be assignable, in whole or in part, directly or indirectly,
by any party hereto without the prior written consent of the other party hereto,
which consent will not be unreasonably withheld, and any attempt to assign any
rights or obligations arising under this Agreement without such consent shall be
void.
3.6 Entire Agreement. The provisions of this Agreement contain the entire
agreement between the parties hereto with respect to the subject matter hereof
and shall supersede all previous negotiations, commitments and writings with
respect to such subject matter.
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3.7 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in the State of Delaware.
3.8 Counterparts. This Agreement may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the
parties and delivered to the other parties.
3.9 Severability. In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
3.10 No Third Party Beneficiaries. Except as otherwise provided herein, this
Agreement is solely for the benefit of FNF and FNT. This Agreement should not be
deemed to confer upon third parties any remedy, claim, liability, reimbursement,
claim of action or other rights in excess of those existing without reference to
this Agreement.
3.11 Waivers. The failure of any party to require strict performance by any
other party of any provision in this Agreement will not waive or diminish that
party's right to demand strict performance thereafter of that or any other
provision hereof.
3.12 Setoff. All payments to be made by any party under this Agreement may be
netted against payments due to such party under this Agreement, but otherwise
shall be made without setoff, counterclaim or withholding, all of which are
hereby expressly waived.
3.13 Headings. The article and section headings of this Agreement are for
convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provision hereof.
3.14 Amendments. This Agreement may not be modified or amended except by an
agreement in writing signed by each of the parties hereto.
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3.15 Termination. This Agreement may be terminated at any time by the written
mutual agreement of the Parties. Participation shall end immediately if FNT is
no longer a member of the Affiliated Group or FNF does not file a Consolidated
Tax Return for a Taxable Year.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed by a duly authorized officer as of the date first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
FIDELITY NATIONAL TITLE GROUP, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
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