Exhibit 10.1
EXECUTION DRAFT
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SEPARATION AGREEMENT
BY AND BETWEEN
FIDELITY NATIONAL FINANCIAL, INC.
AND
FIDELITY NATIONAL TITLE GROUP, INC.
DATED AS OF SEPTEMBER 27, 2005
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.................................................. 1
Section 1.1. General.............................................. 1
Section 1.2. Interpretation....................................... 5
ARTICLE 2. CONTRIBUTION OF TRANSFERRED BUSINESSES....................... 6
Section 2.1. No Representations or Warranties..................... 6
ARTICLE 3. EXCHANGE OFFER............................................... 6
Section 3.1. Exchange Offer....................................... 6
ARTICLE 4. FINANCIAL INFORMATION........................................ 7
Section 4.1. Financial and Other Information...................... 7
ARTICLE 5. CORPORATE GOVERNANCE......................................... 12
Section 5.1. Corporate Governance Covenants....................... 12
Section 5.2. Stock Issuances...................................... 13
ARTICLE 6. ACCESS TO INFORMATION........................................ 13
Section 6.1. Restrictions on Disclosure of Information............ 13
Section 6.2. Legally Required Disclosure of Information........... 14
Section 6.3. Access to Information................................ 14
Section 6.4. Record Retention..................................... 15
Section 6.5. Production of Witnesses.............................. 15
Section 6.6. Reimbursement........................................ 15
Section 6.7. Other Agreements Regarding Access to Information..... 16
ARTICLE 7. ADDITIONAL COVENANTS......................................... 16
Section 7.1. Performance.......................................... 16
Section 7.2. Insurance Matters.................................... 16
ARTICLE 8. INDEMNIFICATION.............................................. 17
Section 8.1. Indemnification by FNT Group......................... 17
Section 8.2. Indemnification by FNF Group......................... 17
Section 8.3. Claim Procedure...................................... 18
Section 8.4. Contribution......................................... 20
Section 8.5. Limitations.......................................... 20
ARTICLE 9. MISCELLANEOUS................................................ 21
Section 9.1. Governing Law........................................ 21
Section 9.2. Jurisdiction......................................... 22
Section 9.3. Dispute Resolution................................... 22
Section 9.4. Notices.............................................. 24
Section 9.5. Binding Effect and Assignment........................ 24
Section 9.6. Severability......................................... 24
Section 9.7. Entire Agreement..................................... 25
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Section 9.8. Counterparts......................................... 25
Section 9.9. Expenses............................................. 25
Section 9.10. Amendment........................................... 25
Section 9.11. Waiver.............................................. 25
Section 9.12. Authority........................................... 25
Section 9.13. Construction of Agreement........................... 26
Section 9.14. Termination......................................... 27
Section 9.15. Limitation on Damages............................... 27
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SEPARATION AGREEMENT
This Separation Agreement (this "Agreement") is entered into as of
September 27, 2005, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware
corporation ("FNF"), and FIDELITY NATIONAL TITLE GROUP, INC., a Delaware
corporation and a subsidiary of FNF ("FNT").
RECITALS
WHEREAS, the Board of Directors of FNF has determined that it is in the
best interests of FNF and its stockholders to contribute the stock of certain
FNF subsidiaries (the "Transferred Businesses") to FNT and distribute a minority
interest in the capital stock of FNT to the stockholders of FNF as a dividend
(the "Distribution"); and
WHEREAS, in connection with the foregoing and to set forth certain aspects
of their ongoing relationship after the Distribution, the parties and their
respective subsidiaries are entering into a number of agreements, including this
Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1. General.
As used in this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Access" has the meaning set forth in Section 6.3.
"Action" means any demand, action, lawsuit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any Governmental Authority or
any arbitration or mediation tribunal.
"Affiliate" means, with respect to any specified Person, a Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person; provided,
however, that, for purposes of this Agreement, no member of either Group shall
be deemed to be an Affiliate of any member of the other Group. As used herein,
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such entity, whether
through ownership of voting securities or other interests, by contract or
otherwise.
"Agreement" has the meaning given in the Preamble.
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"Ancillary Agreements" means each of the Corporate Services Agreements,
the Mirror Notes, the Tax Matters Agreement, the Employee Matters Agreement, the
Registration Rights Agreement, the Intellectual Property Cross License
Agreement, and each other agreement or instrument to be entered into in
connection with the Distribution, including any exhibits, schedules,
attachments, tables or other appendices thereto, and each other agreement and
other instrument contemplated herein or in any of the foregoing, all as may be
amended from time to time.
"Annual Financial Statements" has the meaning set forth in Section
4.1(a)(v).
"Arbitrator" has the meaning set forth in Section 9.3(c).
"Business Day" means any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in Jacksonville, Florida or New York, New York.
"Claim Notice" has the meaning set forth in Section 8.3(a).
"Claimed Amount" has the meaning set forth in Section 8.3(a).
"Class A Common Stock" and "Class B Common Stock" shall mean, respectively
the Class A Common Stock and Class B Common Stock, par value $.0001 per share,
of FNT.
"Code" has the meaning set forth in Section 5.2.
"Contract" means any contract, agreement, lease, license, sales order,
purchase order, instrument or other commitment that is binding on any Person or
any part of its property under applicable law.
"Controlling Party" has the meaning set forth in Section 8.3(d)(ii).
"Coordinated Reporting Period" has the meaning set forth in Section
4.1(a).
"Corporate Services Agreements" means the two Corporate Services
Agreements to be entered into between FNF and FNT, and the two Corporate
Services Agreements to be entered into between FIS and FNT, each as may be
amended from time to time.
"Cut-off Date" has the meaning set forth in Section 4.1(a).
"Damages" means all losses, claims, demands, damages, liabilities,
judgments, dues, penalties, assessments, fines (civil, criminal or
administrative), costs, obligations, liens, forfeitures, settlements, payments,
costs, fees or expenses (including reasonable attorneys' fees and expenses and
any other expenses reasonably incurred in connection with investigating,
prosecuting or defending a claim or Action), of any nature or kind, whether or
not the same would properly be reflected on a balance sheet.
"Disclosing Party" has the meaning set forth in Section 6.2.
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"Dispute" has the meaning set forth in Section 9.3(a).
"Distribution" has the meaning set forth in the Recitals.
"Distribution Date" means the date as of which the Distribution is
effected.
"Employee Matters Agreement" means that certain Employee Matters Agreement
entered into by and between FNF and FNT, as may be amended from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
together with the rules and regulations promulgated thereunder.
"Financial Statements" means the Annual Financial Statements and Quarterly
Financial Statements collectively.
"FNF" has the meaning set forth in the preamble.
"FNF Annual Statements" has the meaning set forth in Section 4.1(b)(ii).
"FNF Business" means the businesses or operations of the FNF Group other
than the Transferred Businesses.
"FNF Debt Securities" has the meaning set forth in Section 3.1.
"FNF Group" means FNF, the FNF Subsidiaries and each Person that is an
Affiliate of FNF (other than any member of the FNT Group) immediately after the
Distribution Date, and each other Person that becomes an Affiliate of FNF after
the Distribution Date.
"FNF Indemnified Parties" has the meaning set forth in Section 8.1.
"FNF Public Filings" has the meaning set forth in Section 4.1(a)(x)
"FNF Subsidiaries" means all direct and indirect Subsidiaries of FNF.
"FNF's Auditors" has the meaning set forth in Section 4.1(b)(i).
"FNT" has the meaning given in the Preamble.
"FNT Group" means FNT, the FNT Subsidiaries and each Person that FNT
directly or indirectly controls immediately after the Distribution Date, and
each other Person that becomes an Affiliate of FNT after the Distribution Date.
"FNT Indemnified Parties" has the meaning set forth in Section 8.2.
"FNT Indemnitees" means FNT, each Affiliate of FNT and each of their
respective Representatives and each of the heirs, executors, successors and
assigns of any of the foregoing.
"FNT Public Filings" has the meaning set forth in Section 4.1(a)(vi).
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"FNT Subsidiaries" means all direct and indirect Subsidiaries of FNT.
"FNT Voting Stock" has the meaning set forth in Section 5.1.
"FNT's Auditors" has the meaning set forth in Section 4.1(b)(i).
"GAAP" means U.S. generally accepted accounting principles, consistently
applied.
"Governmental Authority" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau or
agency, or any other regulatory, administrative or governmental authority,
including the NYSE.
"Group" means either the FNF Group or the FNT Group, as the context
requires.
"Indemnifiable Losses" mean all Damages suffered by an Indemnitee,
including any reasonable out-of-pocket fees, costs or expenses of enforcing any
indemnity hereunder; provided that "Indemnifiable Losses" shall not include any
such Damages caused by, resulting from or arising out of the gross negligence,
willful misconduct or fraud of such Indemnitee.
"Indemnified Party" has the meaning set forth in Section 8.3(a).
"Indemnifying Party" has the meaning set forth in Section 8.3(a).
"Indemnitee" means a Person who or which may seek indemnification under
this Agreement.
"Intellectual Property Cross License Agreement" means that certain
Intellectual Property Cross License Agreement entered into by and between FNF
and FNT, as may be amended from time to time.
"IRS" means the United States Internal Revenue Service.
"Mirror Notes" has the meaning set forth in Section 3.1.
"Non-controlling Party" has the meaning set forth in Section 8.3(d)(ii).
"NYSE" means the New York Stock Exchange, Inc.
"Owning Party" has the meaning set forth in Section 6.2.
"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 and a governmental entity or any
department, agency, or political subdivision thereof.
"Possessor" has the meaning set forth in Section 6.3.
"Quarterly Financial Statements" has the meaning set forth in Section
4.1(a)(iv).
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"Registration Rights Agreement" means the Registration Rights Agreement to
be entered into between FNF and FNT prior to the Distribution, as may be amended
from time to time.
"Regulation S-K" means Regulation S-K of the General Rules and Regulations
promulgated by the SEC pursuant to the Securities Act.
"Regulation S-X" means Regulation S-X of the General Rules and Regulations
promulgated by the SEC pursuant to the Securities Act.
"Representatives" means, with respect to any Person, any of such Person's
directors, officers, employees, agents, consultants, advisors, accountants or
attorneys.
"Requestor" has the meaning set forth in Section 6.3.
"Retention Period" has the meaning set forth in Section 6.4.
"SEC" means the United States Securities and Exchange Commission, or any
successor agency.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"Steering Committee" has the meaning set forth in Section 9.3(a).
"Subsidiary" means with respect to any specified Person, any corporation
or other legal entity of which such Person controls or owns, directly or
indirectly, more than fifty percent (50%) of the stock or other equity interest
entitled to vote on the election of the members to the board of directors or
similar governing body; provided, however, that unless the context otherwise
requires, references to Subsidiaries of FNF will not include the entities that
will be transferred to FNT or other members of the FNT Group pursuant to this
Agreement, whether the transfer of such entities occurs prior to or after the
Distribution Date.
"Tax Matters Agreement" means that certain Tax Matters Agreement entered
by and between FNF and FNT, as may be amended from time to time.
"Tax" and "Taxes" each mean any income, gross income, gross receipts,
profits, capital stock, franchise, withholding, payroll, social security,
workers compensation, unemployment, disability, property, ad valorem, stamp,
excise, severance, occupation, service, sales, use, license, lease, transfer,
import, export, value added, alternative minimum, estimated or other tax
(including any fee, assessment, or other charge in the nature of or in lieu of
any tax) imposed by any governmental entity or political subdivision thereof,
and any interest, penalties, additions to tax, or additional amounts in respect
of the foregoing.
"Third-Party Claim" has the meaning set forth in Section 8.3(d)(i).
"Transferred Businesses" has the meaning set forth in the Recitals.
Section 1.2. Interpretation.
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(a) For purposes of this Agreement (including all exhibits, schedules and
amendments), unless the context otherwise requires, (i) all terms defined herein
include the plural as well as the singular, and the masculine, feminine or
neuter gender shall be deemed to include the others whenever the context so
requires, (ii) all accounting terms used but not otherwise defined herein shall
have the meanings given to them under GAAP, and (iii) references to any Person
include successors of such Person by consolidation and merger and transferees of
all or substantially all its assets (provided that such successor has duly
assumed in writing all such Person's obligations, if any, hereunder).
(b) Words such as "herein," "hereinafter," "hereof," "hereto," "hereby"
and "hereunder," and words of like import refer to this Agreement, unless the
context requires otherwise.
(c) References herein to any agreement or other instrument shall, unless
the context otherwise requires (or the definition thereof otherwise specifies),
be deemed references to the same as it may from time to time be changed, amended
or extended in accordance with its terms.
(d) All references in this Agreement to times of the day shall be to the
city of Jacksonville, Florida time.
ARTICLE 2. CONTRIBUTION OF TRANSFERRED BUSINESSES
Section 2.1. No Representations or Warranties.
FNT (on behalf of itself and each member of the FNT Group) acknowledges
and agrees that, except as expressly set forth in this Agreement or any
Ancillary Agreement, (a) no member of the FNF Group is making any
representations or warranties, express or implied, in this Agreement, any
Ancillary Agreement or any other agreement contemplated hereby or thereby, as to
any Transferred Businesses, including without limitation as to the title to such
entities' shares or other ownership interests or as to the assets, liabilities,
business or financial condition of such entities, all such transfers being made
on an "as-is, where-is" basis and (b) FNT and its Affiliates will bear the
economic and legal risks that any conveyance will prove to be sufficient to vest
in them good and marketable title, free and clear of any security interest,
pledge, lien, charge, claim or other encumbrance of any nature whatsoever and
that any consents or approvals, and that any requirements of laws or judgments,
with respect to the transfer of the Transferred Businesses, have been received
or met.
ARTICLE 3. EXCHANGE OFFER
Section 3.1. Exchange Offer.
Concurrently with the contribution to FNT of the Transferred Businesses,
FNT issued to FNF two promissory notes, each in an aggregate principal amount
equal to $250 million (the "Mirror Notes"). Each Mirror Note has an interest
rate and a final maturity that is the same as that of a series of FNF's public
debt securities as of the Distribution Date (the "FNF Debt Securities"), and
further provides that it may be redeemed in whole or in part upon delivery to
FNF of an equal principal amount of FNF Debt Securities of the corresponding
Series. FNT agrees that, upon request of FNF, it will conduct one or more
exchange offers, in which FNT will
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offer to exchange newly-issued notes of FNT for outstanding FNF Debt Securities,
and upon completion thereof shall deliver to FNF any FNF Debt Securities so
obtained in redemption of Mirror Notes. Any such exchange offer shall be
conducted on such terms and in such manner as FNF shall direct, provided that
FNT's consent (which shall not be unreasonably withheld or delayed) shall be
required for any material deviation of such terms or manner from the customary
terms or manner of similar exchange offers.
ARTICLE 4. FINANCIAL INFORMATION
Section 4.1. Financial and Other Information.
(a) Financial Information. FNT agrees that, for so long as FNF is required
to consolidate the results of operations and financial position of FNT and any
other members of the FNT Group or to account for its investment in FNT under the
equity method of accounting (determined in accordance with GAAP and consistent
with SEC reporting requirements) (such period, the "Coordinated Reporting
Period," and the final day of such period, the "Cut-off Date"):
(i) Disclosure Controls. FNT will, and will cause each other member
of the FNT Group to, maintain, as of and after the Distribution Date,
disclosure controls and procedures and internal control over financial
reporting as defined in Rule 13a-15 promulgated under the Exchange Act;
FNT will cause each of its principal executive and principal financial
officers to sign and deliver certifications to FNT's periodic reports and
will include the certifications in FNT's periodic reports, as and when
required pursuant to Exchange Act Rule 13a-14 and Item 601 of Regulation
S-K; FNT will cause its management to evaluate FNT's disclosure controls
and procedures and internal control over financial reporting (including
any change in internal control over financial reporting) as and when
required pursuant to Exchange Act Rule 13a-15; FNT will disclose in its
periodic reports filed with the SEC information concerning FNT
management's responsibilities for and evaluation of FNT's disclosure
controls and procedures and internal control over financial reporting
(including, without limitation, the annual management report and
attestation report of FNT's independent auditors relating to internal
control over financial reporting) as and when required under Items 307 and
308 of Regulation S-K and other applicable SEC rules; and, without
limiting the general application of the foregoing, FNT will, and will
cause each other member of the FNT Group to, maintain as of and after the
Distribution Date, internal systems and procedures that will provide
reasonable assurance that (A) the Financial Statements are reliable and
timely prepared in accordance with GAAP and applicable law, (B) all
transactions of members of the FNT Group are recorded as necessary to
permit the preparation of the Financial Statements, (C) the receipts and
expenditures of members of the FNT Group are authorized at the appropriate
level within FNT, and (D) unauthorized use or disposition of the assets of
any member of the FNT Group that could have a material effect on the
Financial Statements is prevented or detected in a timely manner.
(ii) Fiscal Year. FNT will, and will cause each member of the FNT
Group organized in the U.S. to, maintain a fiscal year that commences and
ends on the same calendar days as FNF's fiscal year commences and ends,
and to maintain monthly
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accounting periods that commence and end on the same calendar days as
FNF's monthly accounting periods commence and end.
(iii) Monthly Financial Reports. No later than ten (10) Business
Days after the end of each monthly accounting period of FNT thereafter
(including the last monthly accounting period of FNT of each fiscal year),
FNT will deliver to FNF a consolidated income statement and balance sheet
for FNT for such period, in such format and detail as FNF may request.
(iv) Quarterly Financial Statements. As soon as practicable, and in
any event no later than ten (10) Business Days prior to the date on which
FNF is required to file a Form 10-Q with the SEC for each of the first
three (3) fiscal quarters in each fiscal year of FNF, FNT will deliver to
FNF drafts of (A) the consolidated financial statements of the FNT Group
(and notes thereto) for such periods and for the period from the beginning
of the current fiscal year to the end of such quarter, setting forth in
each case in comparative form for each such fiscal quarter of FNT the
consolidated figures (and notes thereto) for the corresponding quarter and
periods of the previous fiscal year and all in reasonable detail and
prepared in accordance with Article 10 of Regulation S-X and GAAP, and (B)
a discussion and analysis by management of the FNT Group's financial
condition and results of operations for such fiscal period, including,
without limitation, an explanation of any material period-to-period change
and any off-balance sheet transactions, all in reasonable detail and
prepared in accordance with Item 303(b) of Regulation S-K. The information
set forth in (A) and (B) above is referred to in this Agreement as the
"Quarterly Financial Statements." FNT may continue to revise such draft
Quarterly Financial Statements prior to the filing thereof in order to
make corrections and changes which corrections and changes will be
delivered by FNT to FNF as soon as practicable; provided, that FNF's and
FNT's financial Representatives will actively consult with each other
regarding any changes (whether or not substantive) which FNT may consider
making to its Quarterly Financial Statements and related disclosures, with
particular focus on any changes which would have an effect upon FNF's
financial statements or related disclosures. No later than five (5)
Business Days prior to the date FNF publicly files its Form 10-Q with the
SEC, FNT will deliver to FNF the final form of the FNT Quarterly Financial
Statements and certifications thereof by the principal executive and
financial officers of FNT in substantially the forms required under SEC
rules for periodic reports and in form and substance satisfactory to FNF.
(v) Annual Financial Statements. As soon as practicable, and in any
event no later than twenty (20) Business Days prior to the date on which
FNF is required to file a Form 10-K with the SEC, FNT will deliver to FNF
(A) drafts of the consolidated financial statements of the FNT Group (and
notes thereto) for such year, setting forth in each case in comparative
form the consolidated figures (and notes thereto) for the previous fiscal
year and all in reasonable detail and prepared in accordance with
Regulation S-X and GAAP and (B) a discussion and analysis by management of
the FNT Group's financial condition and results of operations for such
year, including, without limitation, an explanation of any material
period-to-period change and any off-balance sheet transactions, all in
reasonable detail and prepared in accordance with Item 303(a) of
Regulation S-K. The information set forth in (A) and (B) above is referred
to in this
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Agreement as the "Annual Financial Statements." FNT may continue to revise
such draft Annual Financial Statements prior to the filing thereof in
order to make corrections and changes which corrections and changes will
be delivered by FNT to FNF as soon as practicable; provided, that FNF and
FNT financial Representatives will actively consult with each other
regarding any changes (whether or not substantive) which FNT may consider
making to its Annual Financial Statements and related disclosures, with
particular focus on any changes which would have an effect upon FNF's
financial statements or related disclosures. No later than five (5)
Business Days prior to the date FNF files its Form 10-K with the SEC, FNT
will deliver to FNF the final form of the FNT Annual Financial Statements
and certifications thereof by the principal executive and financial
officers of FNT in substantially the forms required under SEC rules for
periodic reports and in form and substance satisfactory to FNF.
(vi) FNT Reports Generally. Each FNT Group member that files
information with the SEC will deliver to FNF: (A) substantially final
drafts, as soon as the same are prepared, of (x) all reports, notices and
proxy and information statements to be sent or made available by such FNT
Group member to its respective security holders, (y) all regular, periodic
and other reports to be filed or furnished under Sections 13, 14 and 15 of
the Exchange Act (including Reports on Forms 10-K, 10-Q and 8-K and Annual
Reports to Shareholders), and (z) all registration statements and
prospectuses to be filed by such FNT Group member with the SEC or any
securities exchange pursuant to the requirements of such exchange
(collectively, the documents identified in clauses (x), (y) and (z) are
referred to in this Agreement as "FNT Public Filings"), and (B) current
drafts of all FNT Public Filings as soon as practicable, but in no event
later than four (4) Business Days prior to the earliest of the dates the
same are printed, sent or filed, (other than with respect to Form 8-Ks)
and, with respect to Form 8-Ks, as soon as practicable but in no event
later than two (2) Business Days prior to the earliest of the dates the
same are printed, sent or filed in the case of planned Form 8-Ks and as
soon as practicable in the case of unplanned Form 8-Ks. FNT may continue
to revise such FNT Public Filings prior to the filing thereof in order to
make corrections and changes which corrections and changes will be
delivered by FNT to FNF as soon as practicable; provided, that FNF and FNT
financial Representatives will actively consult with each other regarding
any changes (whether or not substantive) which FNT may consider making to
any of its FNT Public Filings and related disclosures prior to any
anticipated filing with the SEC, with particular focus on any changes
which would have an effect upon FNF's financial statements or related
disclosures.
(vii) Budgets and Financial Projections. FNT will, as promptly as
practicable, deliver to FNF copies of all annual and other budgets and
financial projections (consistent in terms of format and detail and
otherwise required by FNF) relating to FNT on a consolidated basis and
will provide FNF an opportunity to meet with management of FNT to discuss
such budgets and projections.
(viii) Other Information. With reasonable promptness, FNT will
deliver to FNF such additional financial and other information and data
with respect to the FNT Group and its business, properties, financial
position, results of operations and prospects as from time to time may be
reasonably requested by FNF.
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(ix) Press Releases and Similar Information. FNT and FNF will
consult with each other as to the timing and content of their annual and
quarterly earnings releases and any interim financial guidance for a
current or future period and will give each other the opportunity to
review the information therein relating to the FNT Group and to comment
thereon. FNF and FNT will make reasonable efforts to issue their
respective annual and quarterly earnings releases at approximately the
same time on the same date.
(x) Cooperation on FNF Filings. FNT will cooperate fully, and cause
FNT's Auditors to cooperate fully, with FNF to the extent requested by FNF
in the preparation of FNF's public earnings or other press releases,
Quarterly Reports on Form 10-Q, Annual Reports to Shareholders, Annual
Reports on Form 10-K, any Current Reports on Form 8-K and any other proxy,
information and registration statements, reports, notices, prospectuses
and any other filings made by FNF with the SEC, any national securities
exchange or otherwise made publicly available (collectively, the "FNF
Public Filings"). FNT agrees to provide to FNF all information that FNF
reasonably requests in connection with any FNF Public Filings or that, in
the judgment of FNF, is required to be disclosed or incorporated by
reference therein under any law, rule or regulation. FNT will provide such
information in a timely manner on the dates requested by FNF (which may be
earlier than the dates on which FNT otherwise would be required hereunder
to have such information available) to enable FNF to prepare, print and
release all FNF Public Filings on such dates as FNF will determine but in
no event later than as required by applicable law. FNT will use its
commercially reasonable efforts to cause FNT's Auditors to consent to any
reference to them as experts in any FNF Public Filings required under any
law, rule or regulation. If and to the extent requested by FNF, FNT will
diligently and promptly review all drafts of such FNF Public Filings and
prepare in a diligent and timely fashion any portion of such FNF Public
Filing pertaining to FNT. Prior to any printing or public release of any
FNF Public Filing, an appropriate executive officer of FNT will, if
requested by FNF, certify that the information relating to any FNT Group
member or the Transferred Businesses in such FNF Public Filing is
accurate, true, complete and correct in all material respects. Prior to
the release or filing thereof, FNF will provide FNT with a draft of any
portion of a FNF Public Filing containing information relating to the FNT
Group and will give FNT an opportunity to review such information and
comment thereon; provided that FNF will determine in its sole and absolute
discretion the final form and content of all FNF Public Filings.
(xi) Confidentiality. Except as required by applicable law, rule, or
regulation, FNF agrees to keep confidential all information provided to
FNF by FNT or any of FNT's affiliates pursuant to this Section 4.1(a),
until the point in time that such information is filed with the SEC or
otherwise publicly disclosed.
(b) Auditors and Accounting. FNT agrees that, during the Coordinated
Reporting Period:
(i) Audit Timing. FNT will use its reasonable best efforts to enable
its independent certified public accountants ("FNT's Auditors") to
complete their audit such that they will date their opinion on the Annual
Financial Statements on the same date that FNF's independent certified
public accountants ("FNF's Auditors") date their opinion on
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FNF's audited annual financial statements (the "FNF Annual Statements"),
and to enable FNF to meet its timetable for the printing, filing and
public dissemination of the FNF Annual Statements, all in accordance with
Section 4.1(a) hereof and as required by applicable law. FNT will provide
to FNF on a timely basis all information that FNF reasonably requires to
meet its schedule for the preparation, printing, filing and public
dissemination of the FNF Annual Statements and, without limiting the
foregoing, will provide access to the responsible personnel of FNT as
required for FNF and FNF's Auditors to prepare financial statements and
conduct their audits with respect to the FNT Group.
(ii) Access to FNT Auditors. FNT will authorize FNT's Auditors to
make available to FNF's Auditors both the personnel who performed, or are
performing, the annual audit of FNT and work papers related to the annual
audit of FNT, in all cases within a reasonable time prior to FNT's
Auditors' opinion date, so that FNF's Auditors are able to perform the
procedures they consider necessary to take responsibility for the work of
FNT's Auditors as it relates to FNF's Auditors' report on FNF's
statements, all within sufficient time to enable FNF to meet its timetable
for the printing, filing and public dissemination of the FNF Annual
Statements.
(iii) Access to Records. If FNF determines in good faith that there
may be some inaccuracy in a FNT Group member's financial statements or
deficiency in a FNT Group member's internal accounting controls or
operations that could materially impact FNF's financial statements, at
FNF's request, FNT will provide FNF's internal auditors with access to the
FNT Group's books and records so that FNF may conduct reasonable audits
relating to the financial statements provided by FNT under this Agreement
as well as to the internal accounting controls and operations of the FNT
Group.
(iv) Notice of Changes. FNT will give FNF as much prior notice as
reasonably practicable of any significant changes in FNT's accounting
practices or principles from those in effect on the Distribution Date. FNT
will consult with FNF and, if requested by FNF, FNT will consult with
FNF's Auditors with respect thereto.
(v) Accounting Changes Requested by FNF. FNT will consult with FNF
regarding any changes in its accounting practices or accounting principles
that are reasonably requested by FNF in order for FNT's accounting
practices and principles to be consistent with those of FNF.
(vi) Special Reports of Deficiencies or Violations. FNT will report
in reasonable detail to FNF the following events or circumstances promptly
after any executive officer of FNT or any member of the FNT Board of
Directors becomes aware of such matter: (A) all significant deficiencies
and material weaknesses in the design or operation of internal control
over financial reporting which are reasonably likely to adversely affect
FNT's ability to record, process, summarize and report financial
information; (B) any fraud, whether or not material, that involves
management or other employees who have a significant role in FNT's
internal control over financial reporting; (C) any illegal act within the
meaning of Section 10A(b) and (f) of the Exchange Act; and (D) any report
of a material violation of law that an attorney representing any FNT Group
11
member has formally made to any officers or directors of FNT pursuant to
the SEC's attorney conduct rules (17 C.F.R. Part 205).
ARTICLE 5. CORPORATE GOVERNANCE
Section 5.1. Corporate Governance Covenants.
In addition to the other covenants contained in this Agreement and the
Ancillary Agreements, FNT hereby covenants and agrees that, for so long as FNF
beneficially owns at least fifty percent (50%) of the total voting power of all
classes of then outstanding capital stock of FNT entitled to vote generally in
the election of directors ("FNT Voting Stock"):
(a) Neither FNT nor any member of its Group will, without the prior
written consent of FNF, take, or cause to be taken, directly or indirectly, any
action, or enter into any agreement, that would cause FNF or any member of its
Group to violate any law, agreement or judgment.
(b) FNT will not, without the prior written consent of FNF, take, or cause
to be taken, directly or indirectly, any action, including making or failing to
make any election under the law of any state, which has the effect, directly or
indirectly, of restricting or limiting the ability of FNF to freely sell,
transfer, assign, pledge or otherwise dispose of shares of FNT Common Stock or
would restrict or limit the rights of any transferee of FNF as a holder of FNT
Common Stock. Without limiting the generality of the foregoing, FNT will not,
without the prior written consent of FNF, take any action, or take any action to
recommend to its stockholders any action, which would among other things, limit
the legal rights of, or deny any benefit to, FNF as a FNT stockholder either (i)
solely as a result of the amount of Common Stock owned by FNF or (ii) in a
manner not applicable to FNT stockholders generally.
(c) To the extent that FNF is a party to any existing Contracts that
provide that certain actions or inactions of the FNF Group (which for purposes
of such Contract includes any member of the FNT Group) may result in FNF being
in breach of or in default under such Contracts and FNF has advised FNT of the
existence, and has furnished FNT with copies, of such Contracts (or the relevant
portions thereof), FNT will not take or fail to take, as applicable, and FNT
will cause the other members of the FNT Group not to take or fail to take, as
applicable, any actions that reasonably could result in FNF being in breach of
or in default under any such Contract. The parties acknowledge and agree that
from time to time after the date hereof FNF may in good faith (and not solely
with the intention of imposing restrictions on FNT pursuant to this covenant)
enter into additional Contracts or amendments to existing Contracts that provide
that certain actions or inactions of the FNF Group (including, for purposes of
this Section 5.1(c), members of the FNT Group) may result in FNF being in breach
of or in default under such Contracts. In such event, provided FNF has notified
FNT of such additional Contracts or amendments to existing Contracts, FNT will
not thereafter take or fail to take, as applicable, and FNT will cause the other
members of the FNT Group not to take or fail to take, as applicable, any actions
that reasonably could result in FNF being in breach of or in default under any
such additional Contracts or amendments to existing Contracts. FNF acknowledges
and agrees that FNT will not be deemed in breach of this Section 5.1(c) to the
extent that, prior to being notified by FNF of an additional Contract or an
amendment to an existing Contract pursuant to this Section 5.1(c), a FNT Group
member already has taken or failed to take one or
12
more actions that would otherwise constitute a breach of this Section 5.1(c) had
such action(s) or inaction(s) occurred after such notification, provided that
FNT does not, after notification by FNF, take any further action or fail to take
any action that contributes further to such breach or default. FNT agrees that
any information provided to it pursuant to this Section 5.1(c) will constitute
information that is subject to FNT's obligations under Article 6.
(d) FNT shall not, without FNF's prior written consent, enter into any
agreement or arrangement that binds or purports to bind, directly or indirectly,
any member of the FNF Group.
Section 5.2. Stock Issuances. FNT will not, without the prior written consent of
FNF, issue any shares of stock of any type or other ownership interests or
securities, or any rights, warrants or options to acquire shares of stock of any
type or other ownership interests or securities (including, without limitation,
securities convertible into or exchangeable for shares of capital stock of any
type or other ownership interests or securities), if after giving effect to such
issuances and considering all of the shares of stock of any type or other
ownership interests or securities acquirable pursuant to such rights, warrants
and options to be outstanding on the date of such issuance (whether or not then
exercisable), FNT and FNF would not be affiliated within the meaning of Section
1504(a)(1) of the Internal Revenue Code of 1986, as amended from time to time
(the "Code"), or any successor provision, or FNF would not control FNT within
the meaning of Section 368(c) of the Code or any successor provision.
ARTICLE 6. ACCESS TO INFORMATION
Section 6.1. Restrictions on Disclosure of Information.
(a) Generally. Without limiting any rights or obligations under any other
existing or future agreement between the parties and/or any other members of
their respective Groups relating to confidentiality, until the date that is
three years after the end of the Coordinated Reporting Period each party will,
and each party will cause its respective Group members and its Representatives
to, hold in confidence, with at least the same degree of care that applies to
FNF's confidential and proprietary information pursuant to confidentiality
policies in effect as of the Distribution Date, all confidential and proprietary
information concerning the other Group that is either in its possession as of
the Distribution Date or furnished by the other Group or its respective
Representatives at any time pursuant to this Agreement, any Ancillary Agreement
or the transactions contemplated hereby or thereby. Notwithstanding the
foregoing, each party, its respective Group members and its Representatives may
disclose such information to the extent that such party can demonstrate that
such information is or was (i) in the public domain other than by the breach of
this Agreement or by breach of any other agreement between or among the parties
and/or any of their respective Group members relating to confidentiality, or
(ii) lawfully acquired from a third Person on a non-confidential basis or
independently developed by, or on behalf of, such party by Persons who do not
have access to any such information. Each party will maintain, and will cause
its respective Group members and Representatives to maintain, policies and
procedures, and develop such further policies and procedures as will from time
to time become necessary or appropriate, to ensure compliance with this Section
6.1.
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(b) Disclosure of Third Person Information. Each party acknowledges that
it and other members of its Group may have in its or their possession
confidential or proprietary information of third Persons that was received under
a confidentiality or non-disclosure agreement between such third Person and the
other party. Each party will, and will cause its respective Group members and
its Representatives to, hold in strict confidence the confidential and
proprietary information of third Persons to which any member of such party's
Group has access, in accordance with the terms of any agreements entered into
between such third Person and the other party or a member of the other party's
Group.
Section 6.2. Legally Required Disclosure of Information.
If either party or any of its respective Group members or Representatives
becomes legally required to disclose any information (the "Disclosing Party")
that it is otherwise obligated to hold in strict confidence pursuant to Section
6.1, such party will promptly notify the other party (the "Owning Party") and
will use all commercially reasonable efforts to cooperate with the Owning Party
so that the Owning Party may seek a protective order or other appropriate remedy
and/or waive compliance with this Section 6.2. All expenses reasonably incurred
by the Disclosing Party in seeking a protective order or other remedy will be
borne by the Owning Party. If such protective order or other remedy is not
obtained, or if the Owning Party waives compliance with this Section 6.2, the
Disclosing Party will (a) disclose only that portion of the information which
its legal counsel advises it is compelled to disclose or otherwise stand liable
for contempt or suffer other similar significant corporate censure or penalty,
(b) use all commercially reasonable efforts to obtain reliable assurance
requested by the Owning Party that confidential treatment will be accorded such
information, and (c) promptly provide the Owning Party with a copy of the
information so disclosed, in the same form and format so disclosed, together
with a list of all Persons to whom such information was disclosed.
Section 6.3. Access to Information.
During the Retention Period (as defined in Section 6.4 below), each party
will provide to the other party, and will cause its respective Group members and
Representatives to provide to the other party, in accordance with the
requirements of this Section 6.3, reasonable Access upon reasonable advance
written request to all information (other than information which is (a)
protected from disclosure by the attorney-client privilege or work product
doctrine, (b) proprietary in nature, (c) the subject of a confidentiality
agreement between such party and a third Person which prohibits disclosure to
the other party, or (d) prohibited from disclosure under applicable law) owned
by such party or one of its Group members or within such party's or any of its
respective Group member's or Representative's possession which is created prior
to the Distribution Date and which relates to the business, assets or
liabilities of the requesting party (the "Requestor"), if such access is
reasonably required by the Requestor for any bona fide business purpose.
"Access" means the obligation of a party in possession of information (the
"Possessor") requested by the Requestor to conduct a diligent search designed to
identify and locate all requested information that is owned and/or possessed by
the Possessor or any respective Group members or Representatives and to collect
all such information for inspection by the Requestor during normal business
hours at the Possessor's place of business. Subject to such confidentiality
and/or security obligations as the Possessor may reasonably deem necessary, the
Requestor may have all requested information duplicated at Requestor's expense.
14
Alternatively, the Possessor may choose to deliver, at the Requestor's expense,
all requested information to the Requestor in the form requested by the
Requestor. The Possessor will notify the Requestor in writing at the time of
delivery if such information is to be returned to the Possessor. In such case,
the Requestor will return such information when no longer needed to the
Possessor at the Requestor's expense. In connection with providing information
pursuant to this Section 6.3, each party hereto will, upon the request of the
other party and upon reasonable advance notice, make available during normal
business hours its respective employees (and those employees of its respective
Group members and Representatives, as applicable) to the extent that they are
reasonably necessary to discuss and explain all requested information with and
to the Requestor.
Section 6.4. Record Retention.
FNT will, and will cause each of the other FNT Group members to, adopt and
comply with a record retention policy with respect to information owned by or in
the possession of the FNT Group and which is created prior to the Distribution
Date. FNF will, and FNF will cause each of the other FNF Group members to,
comply with the FNF record retention policy with respect to information owned by
or in the possession of the FNF Group and which is created prior to the
Distribution Date. Each party will, at its sole cost and expense, preserve and
retain all information in its respective possession or control that the other
party has the right to access pursuant to Section 6.3 or that it is required to
preserve and retain for such period as is required in accordance with such
record retention policy or for any longer period as may be required by (a) any
Government Authority, (b) any litigation matter, (c) applicable law, or (d) any
Ancillary Agreement (as applicable, the "Retention Period"). If either party
wishes to dispose of any information which it is obligated to retain under this
Section 6.4 prior to the expiration of the Retention Period, then that party
will first provide forty-five (45) days' written notice to the other party, and
the other party will have the right, at its option and expense, upon prior
written notice within such 45-day period, to take possession of such information
within ninety (90) days after the date of the notice provided pursuant to this
Section 6.4. Written notice of intent to dispose of such information will
include a description of the information in detail sufficient to allow the other
party to reasonably assess its potential need to retain such materials.
Section 6.5. Production of Witnesses.
Each party will use commercially reasonable efforts, and will cause each
of its respective Group members to use commercially reasonable efforts, to make
reasonably available to each other, upon written request, its past and present
Representatives as witnesses to the extent that any such Representatives may
reasonably be required in connection with any legal, administrative or other
proceedings in which the requesting party may from time to time be involved.
Section 6.6. Reimbursement.
Unless otherwise provided in this Article 6, each party providing access
to information or witnesses to the other party pursuant to Section 6.3, 6.4 or
6.5 will be entitled to receive from the receiving party, upon the presentation
of invoices therefor, payment for all reasonable, out-of-
15
pocket costs and expenses (excluding allocated compensation and overhead
expenses) as may be reasonably incurred in providing such information or
witnesses.
Section 6.7. Other Agreements Regarding Access to Information.
The rights and obligations of the parties under this Article 6 are subject
to any specific limitations, qualifications or additional provisions on the
sharing, exchange or confidential treatment of information set forth in this
Agreement or any Ancillary Agreement.
ARTICLE 7. ADDITIONAL COVENANTS
Section 7.1. Performance.
FNF will cause to be performed, and hereby guarantees the performance of,
all actions, agreements and obligations set forth in this Agreement or in any
Ancillary Agreement to be performed by any member of the FNF Group. FNT will
cause to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth in this Agreement or in any Ancillary
Agreement to be performed by any member of the FNT Group. Each party further
agrees that it will cause its other Group members not to take any action or fail
to take any action inconsistent with such party's obligations under this
Agreement or any Ancillary Agreement.
Section 7.2. Insurance Matters.
(a) Coverage. Until the Cut-off Date, FNF shall use its reasonable best
efforts to enable FNT and its subsidiaries and their respective directors and
officers to be covered under all policies of insurance maintained by FNF for
itself, its Subsidiaries and their respective directors and officers generally.
FNT will promptly pay or reimburse FNF, as the case may be, for all costs and
expenses associated with this coverage that are allocated by FNF to FNT and its
Subsidiaries in accordance with FNF's customary allocation methodology. FNT, its
Subsidiaries and each of their directors and officers may review such policies
upon request. FNF agrees to cooperate with and assist FNT in FNT obtaining
directors', officers' and other insurance coverage after the termination of
coverage under FNF's policies, including without limitation in obtaining any
tail coverage sought by FNT with respect to periods prior to such termination.
(b) Payments and Reimbursements. All payments and reimbursements by FNT
pursuant to this Section 7.2 will be made promptly but in any event within
thirty (30) days after FNT's receipt of an invoice therefor from FNF.
(c) Historical Loss Data. FNF will provide FNT with Access, upon written
request, to historical insurance loss information relating to the Transferred
Businesses and any other information relating to FNF's historic insurance
program with respect to the Transferred Businesses. Any such information
provided to FNT pursuant to this provision will also be subject to the
provisions of Section 6.3.
16
ARTICLE 8. INDEMNIFICATION
Section 8.1. Indemnification by FNT Group.
FNT will indemnify, defend and hold harmless FNF, each member of the FNF
Group, each of their respective past, present and future Representatives, and
each of their respective successors and assigns (collectively, the "FNF
Indemnified Parties") from and against any and all Indemnifiable Losses incurred
or suffered by the FNF Indemnified Parties arising or resulting from the
following, whether, except as set forth below, such Indemnifiable Losses arise
or accrue prior to, on or following the Distribution Date:
(a) the ownership or operation of the assets or properties, and the
operations or conduct, of the Transferred Businesses, or any other business of
the FNT Group, whether arising before or after the Distribution Date (for the
avoidance of doubt, this clause (a) shall include, without limitation, any
Indemnifiable Losses of the FNF Indemnified Parties arising or resulting from
the action titled ▇▇▇▇▇▇ v. Fidelity National Financial Inc., et al or any
alleged or actual conduct that forms the basis for such action);
(b) without limiting clause (a), any guarantee, indemnification
obligation, surety bond or other credit support arrangement by FNF or any of its
Affiliates for the benefit of FNT or any of FNT's Affiliates, subject to any
limitations on liability in such agreement;
(c) any breach by FNT or any of FNT's Affiliates of this Agreement, the
Ancillary Agreements, any other agreement to which any of them is a party, FNT's
certificate of incorporation, FNT's by-laws or any law or regulation;
(d) any untrue statement of, or omission to state, a material fact in the
FNF Public Filings to the extent it was as a result of information that FNT
furnished to FNF or which FNF incorporated by reference from the FNT Public
Filings, if such statement or omission was made or occurred after the
Distribution Date; and
(e) any untrue statement of, or omission to state, a material fact in any
registration statement or any prospectus that FNT may prepare or any FNT Public
Filing, except to the extent the statement was made or omitted in reliance upon
information provided to FNT by FNF expressly for use in any registration
statement, prospectus or FNT Public Filing, or information relating to and
provided by any underwriter expressly for use in any registration statement or
prospectus.
Section 8.2. Indemnification by FNF Group.
FNF will indemnify, defend and hold harmless each member of the FNT Group,
each of their respective past, present and future Representatives, and each of
their respective successors and assigns (collectively, the "FNT Indemnified
Parties") from and against any and all Indemnifiable Losses incurred or suffered
by the FNT Indemnified Parties arising or resulting from the following, whether,
except as set forth below, such Indemnifiable Losses arise or accrue prior to,
on or following the Distribution Date:
17
(a) the ownership or operation of the assets or properties, and the
operations or conduct, of FNF and all other members of the FNF Group, whether
arising before or after the Distribution Date;
(b) any guarantee, indemnification obligation, surety bond or other credit
support arrangement by FNT or any of its Affiliates for the benefit of FNF or
any of FNF's Affiliates, subject to any limitations on liability in such
agreement;
(c) any breach by FNF or any of its Affiliates of this Agreement, any of
the Ancillary Agreements, any other agreement to which any of them is a party,
FNF's certificate of incorporation, FNF's by-laws, or any law or regulation;
(d) any untrue statement of, or omission to state, a material fact in the
FNT Public Filings to the extent it was as a result of information that FNF
furnished to FNT or which FNT incorporated by reference from FNF's Public
Filings;
(e) any untrue statement of, or omission to state, a material fact
contained in any registration statement or any prospectus that FNT may prepare,
but only to the extent the untrue statement or omission was made or omitted in
reliance upon information provided by FNF expressly for use in any registration
statement or prospectus; and
(f) any action or liability arising as a result of the Distribution.
Section 8.3. Claim Procedure.
(a) Claim Notice. A party that seeks indemnity under this Article 8 (an
"Indemnified Party") will give written notice (a "Claim Notice") to the party
from whom indemnification is sought (an "Indemnifying Party"), whether the
Damages sought arise from matters solely between the parties or from Third Party
Claims. The Claim Notice must contain (i) a description and, if known, estimated
amount (the "Claimed Amount") of any Damages incurred or reasonably expected to
be incurred by the Indemnified Party, (ii) a reasonable explanation of the basis
for the Claim Notice to the extent of facts then known by the Indemnified Party,
and (iii) a demand for payment of those Damages. No delay or deficiency on the
part of the Indemnified Party in so notifying the Indemnifying Party will
relieve the Indemnifying Party of any liability or obligation hereunder except
to the extent of any Damages caused by or arising out of such failure.
(b) Response to Notice of Claim. Within thirty (30) days after delivery of
a Claim Notice, the Indemnifying Party will deliver to the Indemnified Party a
written response in which the Indemnifying Party will either: (i) agree that the
Indemnified Party is entitled to receive all of the Claimed Amount, in which
case the Indemnifying Party will pay the Claimed Amount in accordance with a
payment and distribution method reasonably acceptable to the Indemnified Party;
or (ii) dispute that the Indemnified Party is entitled to receive all or any
portion of the Claimed Amount, in which case, the parties will resort to the
dispute resolution procedures set forth in Section 9.3.
(c) Contested Claims. In the event that the Indemnifying Party disputes
the Claimed Amount, as soon as practicable but in no event later than ten (10)
Business Days after the receipt
18
of the notice referenced in Section 8.3(b)(ii) hereof, the parties will begin
the process of resolving the matter in accordance with the dispute resolution
provisions of Section 9.3 hereof. Upon ultimate resolution thereof, the parties
will take such actions as are reasonably necessary to comply with such
resolution.
(d) Third Party Claims.
(i) In the event that the Indemnified Party receives notice or
otherwise learns of the assertion by a Person who is not a member of
either Group of any claim or the commencement of any Action (collectively,
a "Third-Party Claim") with respect to which the Indemnifying Party may be
obligated to provide indemnification under this Article 8, the Indemnified
Party will give written notification to the Indemnifying Party of the
Third-Party Claim. Such notification will be given within five (5)
Business Days after receipt by the Indemnified Party of notice of such
Third-Party Claim, will be accompanied by reasonable supporting
documentation submitted by such third party (to the extent then in the
possession of the Indemnified Party) and will describe in reasonable
detail (to the extent known by the Indemnified Party) the facts
constituting the basis for such Third-Party Claim and the amount of the
claimed Damages; provided, however, that no delay or deficiency on the
part of the Indemnified Party in so notifying the Indemnifying Party will
relieve the Indemnifying Party of any liability or obligation hereunder
except to the extent of any Damages caused by or arising out of such
failure. Within twenty (20) Business Days after delivery of such
notification, the Indemnifying Party may, upon written notice thereof to
the Indemnified Party, assume control of the defense of such Third-Party
Claim with counsel reasonably satisfactory to the Indemnified Party.
During any period in which the Indemnifying Party has not so assumed
control of such defense, the Indemnified Party will control such defense.
(ii) The party not controlling such defense (the "Non-controlling
Party") may participate therein at its own expense; provided, however,
that if the Indemnifying Party assumes control of such defense and the
Indemnified Party concludes that the Indemnifying Party and the
Indemnified Party have conflicting interests or different defenses
available with respect to such Third-Party Claim, the reasonable fees and
expenses of one separate counsel to all Indemnified Parties will be
considered "Damages" for purposes of this Agreement. The party controlling
such defense (the "Controlling Party") will keep the Non-controlling Party
reasonably advised of the status of such Third-Party Claim and the defense
thereof and will consider in good faith recommendations made by the
Non-controlling Party with respect thereto. The Non-controlling Party will
furnish the Controlling Party with such information as it may have with
respect to such Third-Party Claim (including copies of any summons,
complaint or other pleading which may have been served on such party and
any written claim, demand, invoice, billing or other document evidencing
or asserting the same) and will otherwise cooperate with and assist the
Controlling Party in the defense of such Third-Party Claim.
(iii) The Indemnifying Party will not agree to any settlement of, or
the entry of any judgment arising from, any such Third-Party Claim without
the prior written consent of the Indemnified Party, which consent will not
be unreasonably withheld or delayed;
19
provided, however, that the consent of the Indemnified Party will not be
required if (A) the Indemnifying Party agrees in writing to pay any
amounts payable pursuant to such settlement or judgment, and (B) such
settlement or judgment includes a full, complete and unconditional release
of the Indemnified Party from further liability. The Indemnified Party
will not agree to any settlement of, or the entry of any judgment arising
from, any such Third-Party Claim without the prior written consent of the
Indemnifying Party, which consent will not be unreasonably withheld or
delayed.
Section 8.4. Contribution.
(a) If the indemnification provided for in this Article 8 is unavailable
to, or insufficient to hold harmless an Indemnified Party under Section 8.1(d),
8.1(e), 8.2(d) or 8.2(e) hereof in respect of any Indemnifiable Losses referred
to therein, then each Indemnifying Party shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Indemnifiable Losses (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and the Indemnified Party in connection
with the actions which resulted in Indemnifiable Losses as well as any other
relevant equitable considerations. The relative fault of such Indemnifying Party
and Indemnified Party shall be determined by reference to, another other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact related to information supplied by
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(b) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8.4 were determined by a pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (a) above. The amount paid
or payable by an Indemnified Party as a result of the Indemnifiable Losses
referred to in paragraph (a) above shall be deemed to include, subject to the
limitations set forth above, any legal or other fees or expenses reasonably
incurred by such Indemnified Party in connection with investigating any claim or
defending any Action. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
Section 8.5. Limitations.
(a) Insurance Proceeds; Third Party Coverage. The amount of any Damages
for which indemnification is provided under this Agreement will be net of any
amounts actually recovered by the Indemnified Party from any third Person
(including, without limitation, amounts actually recovered under insurance
policies) with respect to such Damages. Any Indemnifying Party hereunder will be
subrogated to the rights of the Indemnified Party upon payment in full of the
amount of the relevant indemnifiable Damages. An insurer who would otherwise be
obligated to pay any claim will not be relieved of the responsibility with
respect thereto or, solely by virtue of the indemnification provision hereof,
have any subrogation rights with respect thereto. If any Indemnified Party
recovers an amount from a third Person in respect of Damages for which
indemnification is provided in this Agreement after the full amount of
20
such indemnifiable Damages has been paid by an Indemnifying Party or after an
Indemnifying Party has made a partial payment of such indemnifiable Damages and
the amount received from the third Person exceeds the remaining unpaid balance
of such indemnifiable Damages, then the Indemnified Party will promptly remit to
the Indemnifying Party the excess (if any) of (X) the sum of the amount
theretofore paid by such Indemnifying Party in respect of such indemnifiable
Damages plus the amount received from the third Person in respect thereof, less
(Y) the full amount of such indemnifiable Damages.
(b) Tax Characterization. Any indemnification payment made under this
Agreement will be characterized for Tax purposes as a contribution or
distribution or payment of an assumed or retained liability, as applicable.
(c) Other Agreements. Notwithstanding anything to the contrary in Section
8.1 or Section 8.2, (i) indemnification with respect to Taxes shall be governed
exclusively by the Tax Matters Agreement, (ii) to the extent the Intellectual
Property Cross License Agreement specifically provides indemnification with
respect to Third-Party Claims for infringement of Intellectual Property rights,
the Intellectual Property Cross License Agreement shall govern with respect to
that indemnification, and (iii) to the extent the Employee Matters Agreement
specifically provides indemnification with respect to certain employee-related
Liabilities, the Employee Matters Agreement shall govern with respect to that
indemnification. To the extent indemnification is not provided in such Ancillary
Agreements, the terms of this Agreement shall govern.
(d) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY ANCILLARY
AGREEMENT TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS GROUP
MEMBERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS SUFFERED BY AN INDEMNIFIED
PARTY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, IN CONNECTION WITH ANY
DAMAGES ARISING HEREUNDER OR THEREUNDER; PROVIDED, HOWEVER, THAT TO THE EXTENT
AN INDEMNIFIED PARTY IS REQUIRED TO PAY ANY SPECIAL, INCIDENTAL, INDIRECT,
COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS TO A PERSON WHO IS
NOT A MEMBER OF EITHER GROUP IN CONNECTION WITH A THIRD PARTY CLAIM, SUCH
DAMAGES WILL CONSTITUTE DIRECT DAMAGES AND NOT BE SUBJECT TO THE LIMITATION SET
FORTH IN THIS SECTION 8.5(f).
ARTICLE 9. MISCELLANEOUS
Section 9.1. Governing Law.
The internal laws of the State of Florida (without reference to its
principles of conflicts of law) govern the construction, interpretation and
other matters arising out of or in connection with this Agreement (including,
for the avoidance of doubt, those claims or disputes referenced in Section
9.3(d)) and, unless expressly provided therein, each Ancillary Agreement, and
each of the exhibits and schedules hereto and thereto (whether arising in
contract, tort, equity or otherwise).
21
Section 9.2. Jurisdiction.
Subject to Section 9.3, if any Dispute arises out of or in connection with
this Agreement or any Ancillary Agreement, except as expressly contemplated by
another provision of this Agreement or any Ancillary Agreement, the parties
irrevocably (and the parties will cause each other member of their respective
Group to irrevocably) (a) consent and submit to the exclusive jurisdiction of
federal and state courts located in ▇▇▇▇▇ County, Florida, (b) waive any
objection to that choice of forum based on venue or to the effect that the forum
is not convenient, and (c) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHT TO TRIAL OR ADJUDICATION BY JURY.
Section 9.3. Dispute Resolution.
(a) Amicable Resolution. FNF and FNT mutually desire that friendly
collaboration will continue between them. Accordingly, they will try, and they
will cause their respective Group members to try, to resolve in an amicable
manner all disagreements and misunderstandings connected with their respective
rights and obligations under this Agreement or any Ancillary Agreement,
including any amendments hereto or thereto. In furtherance thereof, in the event
of any dispute or disagreement (a "Dispute") between any FNF Group member and
any FNT Group member as to the interpretation of any provision of this Agreement
or any Ancillary Agreement executed in connection herewith or therewith (or the
performance of obligations hereunder or thereunder), then unless otherwise
provided in any Ancillary Agreement, the matter, upon written request of either
party, will be referred for resolution to a steering committee established
pursuant to this Section 9.3(a) (the "Steering Committee"). The Steering
Committee will have two members, one of whom will be appointed by FNF and the
other of whom will be appointed by FNT, and each of whom shall be a senior
executive of the party appointing the member. The Steering Committee will make a
good faith effort to promptly resolve all Disputes referred to it. Steering
Committee decisions will be unanimous and will be binding on FNF and FNT. If the
Steering Committee does not agree to a resolution of a Dispute within fifteen
(15) days after the reference of the matter to it, the Dispute will be referred
to the Presidents of FNF and of FNT. If the Presidents do not agree to a
resolution of the Dispute within fifteen (15) days after the reference of the
matter to them, then the parties will be free to exercise the remedies available
to them under applicable law, subject to Sections 9.3(b) and 9.3(c).
(b) Mediation. In the event any Dispute cannot be resolved in a friendly
manner as set forth in Section 9.3(a), the parties intend that such Dispute be
resolved by mediation. If the Steering Committee is unable to resolve the
Dispute as contemplated by Section 9.3(a), either FNF or FNT may demand
mediation of the Dispute by written notice to the other in which case the two
parties will select a mediator within ten (10) days after the demand. Neither
party may unreasonably withhold consent to the selection of the mediator. Each
of FNF and FNT will bear its own costs of mediation but both parties will share
the costs of the mediator equally.
(c) Arbitration. In the event that the Dispute is not resolved in a
friendly manner as set forth in Section 9.3(a) or through mediation pursuant to
Section 9.3(b), the latter within thirty (30) days of the submission of the
Dispute to mediation, either party involved in the Dispute may submit the
dispute to binding arbitration pursuant to this Section 9.3(c). All Disputes
submitted
22
to arbitration pursuant to this Section 9.3(c) shall be resolved in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
unless the parties involved mutually agree to utilize an alternate set of rules,
in which event all references herein to the American Arbitration Association
shall be deemed modified accordingly. Expedited rules shall apply regardless of
the amount at issue. Arbitration proceedings hereunder may be initiated by
either party making a written request to the American Arbitration Association,
together with any appropriate filing fee, at the office of the American
Arbitration Association in Orlando, Florida. The arbitration shall be by a
single qualified arbitrator ("Arbitrator") experienced in the matters at issue,
such Arbitrator to be mutually agreed upon by FNF and FNT. If the parties fail
to agree on an Arbitrator within thirty (30) days after notice of commencement
of arbitration, the American Arbitration Association shall, upon the request of
any party to the dispute or difference, appoint the Arbitrator. All arbitration
proceedings shall be held in the city of Jacksonville, Florida in a location to
be specified by the Arbitrator (or any place agreed to by the parties and the
Arbitrator). Any order or determination of the arbitral tribunal shall be final
and binding upon the parties to the arbitration as to matters submitted and may
be enforced by any party to the Dispute in any court having jurisdiction over
the subject matter or over any of the parties. The parties agree that the length
of time to be provided in any arbitration action to conduct discovery shall be
limited to ninety (90) days, the length of time to conduct the arbitration
hearing shall be limited to ten (10) days (with each party having equal time)
and that the Arbitrator shall be required to render his or her decision within
thirty (30) days of the completion of the arbitration hearing. All costs and
expenses incurred by the Arbitrator shall be shared equally by the parties. Each
party shall bear its own costs and expenses in connection with any such
arbitration proceeding. The use of any alternative dispute resolution procedures
hereunder will not be construed under the doctrines of laches, waiver or
estoppel to affect adversely the rights of either party.
(d) Non-Exclusive Remedy.
(i) Nothing in this Section 9.3 will prevent either FNF or FNT from
commencing formal litigation proceedings or seeking injunctive or similar
relief if any delay resulting from efforts to mediate such Dispute could
result in serious and irreparable injury to FNF, FNT or any member of
either party's Group.
(ii) Nothing in this Section 9.3 will prevent either FNF or FNT from
immediately seeking injunctive or interim relief in the event of any
actual or threatened breach of any confidentiality provisions of this
Agreement. If an arbitral tribunal has not been appointed with respect to
any Dispute at the time of such actual or threatened breach, then either
party may seek such injunctive or interim relief from any court with
jurisdiction over the matter. If an arbitral tribunal has been appointed
with respect to any Dispute at the time of such actual or threatened
breach, then the parties agree to submit to the jurisdiction of the state
and federal courts of ▇▇▇▇▇ County, Florida, pursuant to Section 9.2, with
respect to such matter.
(e) Commencement of Dispute Resolution Procedure. Notwithstanding anything
to the contrary in this Agreement or any Ancillary Agreement, FNF and FNT are
the only members of their respective Group entitled to commence a dispute
resolution procedure under this Agreement, whether pursuant to Section 8.3, this
Section 9.3 or otherwise, and each party will
23
cause its respective Group members not to commence any dispute resolution
procedure other than through such party as provided in this Section 9.3(e).
Section 9.4. Notices.
Each party giving any notice required or permitted under this Agreement or
any Ancillary Agreement will give the notice in writing and use one of the
following methods of delivery to the party to be notified, at the address set
forth below or another address of which the sending party has been notified in
accordance with this Section 9.4: (a) personal delivery; (b) facsimile or
telecopy transmission with a reasonable method of confirming transmission; (c)
commercial overnight courier with a reasonable method of confirming delivery; or
(d) pre-paid, United States of America certified or registered mail, return
receipt requested. Notice to a party is effective for purposes of this Agreement
or any Ancillary Agreement only if given as provided in this Section 9.4 and
will be deemed given on the date that the intended addressee actually receives
the notice.
If to FNF, to
Fidelity National Financial, Inc.
Attention: General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
If to FNT, to:
Fidelity National Title Group, Inc.
Attention: General Counsel
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Section 9.5. Binding Effect and Assignment.
This Agreement and each Ancillary Agreement binds and benefits the parties
and their respective successors and assigns. Notwithstanding anything in Section
6.8 to the contrary, neither party may assign any of its rights or delegate any
of its obligations under this Agreement or any Ancillary Agreement without the
written consent of the other party which consent may be withheld in such party's
sole and absolute discretion and any assignment or attempted assignment in
violation of the foregoing will be null and void. Notwithstanding the preceding
sentence, either party may assign this Agreement and any Ancillary Agreement in
connection with a merger transaction in which such party is not the surviving
entity or the sale of all or substantially all of its assets.
Section 9.6. Severability.
If any provision of this Agreement or any Ancillary Agreement is
determined to be invalid, illegal or unenforceable, the remaining provisions of
this Agreement or such Ancillary Agreement, as the case may be, shall remain in
full force, if the essential terms and conditions of
24
this Agreement or such Ancillary Agreement, as the case may be, for each party
remain valid, binding and enforceable.
Section 9.7. Entire Agreement.
This Agreement constitutes the final agreement between the parties, and is
the complete and exclusive statement of the parties' agreement on the matters
contained herein. All prior and contemporaneous negotiations and agreements
between the parties with respect to the matters contained herein are superseded
by this Agreement. In the event of any conflict between any provision in this
Agreement and any provision in any Ancillary Agreement pertaining to the subject
matter of such Ancillary Agreement, the specific provisions in such Ancillary
Agreement will control over the provisions in this Agreement.
Section 9.8. Counterparts.
The parties may execute this Agreement in multiple counterparts, each of
which constitutes an original as against the party that signed it, and all of
which together constitute one agreement. The signatures of both parties need not
appear on the same counterpart. The delivery of signed counterparts by facsimile
or email transmission that includes a copy of the sending party's signature is
as effective as signing and delivering the counterpart in person.
Section 9.9. Expenses.
Except as otherwise set forth herein or in any Ancillary Agreement, FNT
shall be responsible for all costs (including third party costs) incurred in
connection with this Agreement.
Section 9.10. Amendment.
The parties may amend this Agreement only by a written agreement signed by
each party to be bound by the amendment and that identifies itself as an
amendment to this Agreement.
Section 9.11. Waiver.
The parties may waive a provision of this Agreement only by a writing
signed by the party intended to be bound by the waiver. A party is not prevented
from enforcing any right, remedy or condition in the party's favor because of
any failure or delay in exercising any right or remedy or in requiring
satisfaction of any condition, except to the extent that the party specifically
waives the same in writing. A written waiver given for one matter or occasion is
effective only in that instance and only for the purpose stated. A waiver once
given is not to be construed as a waiver for any other matter or occasion. Any
enumeration of a party's rights and remedies in this Agreement is not intended
to be exclusive, and a party's rights and remedies are intended to be cumulative
to the extent permitted by law and include any rights and remedies authorized in
law or in equity.
Section 9.12. Authority.
Each of the parties represents to the other that (a) it has the corporate
or other requisite power and authority to execute, deliver and perform this
Agreement and each of the Ancillary
25
Agreements to which it is a party, (b) the execution, delivery and performance
of this Agreement and each of the Ancillary Agreements to which it is a party
have been duly authorized by all necessary corporate or other action, (c) it has
duly and validly executed and delivered this Agreement and each of the Ancillary
Agreements to which it is a party, and (d) this Agreement and each of the
Ancillary Agreements to which it is a party is a legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and general equity principles.
Section 9.13. Construction of Agreement.
(a) Where this Agreement states that a party "will" or "shall" perform in
some manner or otherwise act or omit to act, it means that the party is legally
obligated to do so in accordance with this Agreement or such Ancillary
Agreement, as applicable.
(b) The captions, titles and headings, and table of contents, included in
this Agreement are for convenience only, and do not affect this Agreement's
construction or interpretation. When a reference is made in this Agreement to an
Article or a Section, exhibit or schedule, such reference will be to an Article
or Section of, or an exhibit or schedule to, this Agreement unless otherwise
indicated.
(c) Neither this Agreement nor any uncertainty or ambiguity herein shall
be construed against any party under any rule of construction, and no party
shall be considered the draftsman. The parties acknowledge and agree that this
Agreement has been reviewed, negotiated, and accepted by all parties and their
attorneys and shall be construed and interpreted according to the ordinary
meaning of the words used so as fairly to accomplish the purposes and intentions
of all parties hereto.
(d) This Agreement is for the sole benefit of the parties hereto and their
respective Group members and, except for the indemnification rights of the FNF
Indemnified Parties and the FNT Indemnified Parties under this Agreement, do
not, and are not intended to, confer any rights or remedies in favor of any
Person (including any employee or stockholder of FNF or FNT) other than the
parties signing this Agreement and their respective Group members.
(e) The words "including," "includes," or "include" are to be read as
listing non-exclusive examples of the matters referred to, whether or not words
such as "without limitation" or "but not limited to" are used in each instance.
(f) For purposes of this Agreement, after the Distribution Date the
Transferred Businesses will be deemed to be the business of FNT and the FNT
Group, and all references made in this Agreement to FNT as a party which
operates as of a time following the Distribution Date, will be deemed to refer
to all members of the FNT Group as a single party where appropriate.
26
(g) Any reference in this Agreement to a "member" of a Group means a party
to this Agreement or another Person referred to in the definition of FNT Group
or FNF Group, as applicable.
Section 9.14. Termination.
This Agreement may be terminated only by mutual consent of both FNT and
FNF.
Section 9.15. Limitation on Damages.
EXCEPT TO THE EXTENT OF ANY INDEMNIFICATION OBLIGATIONS HEREUNDER, BUT
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT WILL EITHER PARTY OR ANY OF ITS GROUP MEMBERS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST
PROFITS IN CONNECTION WITH ANY CLAIMS, LOSSES, DAMAGES, OR INJURIES ARISING OUT
OF THE CONDUCT OF SUCH PARTY PURSUANT TO THIS AGREEMENT.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by a duly authorized officer on the date first set forth
above.
FIDELITY NATIONAL FINANCIAL, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
FIDELITY NATIONAL TITLE GROUP, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
27