EXHIBIT 10.1
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AGREEMENT AND PLAN OF MERGER
DATED AS OF JUNE 25, 2006
BY AND BETWEEN
FIDELITY NATIONAL INFORMATION SERVICES, INC.
AND
FIDELITY NATIONAL FINANCIAL, INC.
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TABLE OF CONTENTS
Page
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ARTICLE I THE MERGER..................................................... 2
SECTION 1.1. The Merger.............................................. 2
SECTION 1.2. Closing................................................. 2
SECTION 1.3. Effective Time.......................................... 2
SECTION 1.4. Effects of the Merger................................... 3
SECTION 1.5. Certificate of Incorporation and By-laws................ 3
SECTION 1.6. Directors and Officers.................................. 3
ARTICLE II EFFECT OF THE MERGER ON THE SECURITIES OF THE CONSTITUENT
CORPORATIONS............................................................. 3
SECTION 2.1. Effect on Capital Stock................................. 3
SECTION 2.2. FNF Stock Option Plans.................................. 4
SECTION 2.3. Exchange of Certificates................................ 6
ARTICLE III REPRESENTATIONS AND WARRANTIES............................... 9
SECTION 3.1. Representations and Warranties of FNF................... 9
SECTION 3.2. Representations and Warranties of the Company........... 16
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO MERGER..... 25
SECTION 4.1. Conduct of Business by the Company...................... 25
SECTION 4.2. Other Actions........................................... 27
ARTICLE V ADDITIONAL AGREEMENTS.......................................... 28
SECTION 5.1. Preparation of Form S-4 and the Proxy Statement......... 28
SECTION 5.2. Treatment of Company Stock Options...................... 29
SECTION 5.3. Meetings of Stockholders................................ 29
SECTION 5.4. Access to Information; Confidentiality.................. 29
SECTION 5.5. Reasonable Best Efforts................................. 29
SECTION 5.6. Public Announcements.................................... 30
SECTION 5.7. Acquisition Proposals................................... 30
SECTION 5.8. Fiduciary Duties........................................ 30
SECTION 5.9. Consents, Approvals and Filings......................... 31
SECTION 5.10. Spin-Off................................................ 32
SECTION 5.11. Affiliates and Certain Stockholders..................... 32
SECTION 5.12. NYSE Listing............................................ 33
SECTION 5.13. Stockholder Litigation.................................. 33
SECTION 5.14. Action Relating to Stock Option Plans................... 33
SECTION 5.15. Section 16 Matters...................................... 33
SECTION 5.16. Related Party Agreements................................ 33
SECTION 5.17. Company Common Stock Buy-Backs.......................... 34
SECTION 5.18. Taxation................................................ 34
SECTION 5.19. Takeover Statutes....................................... 34
SECTION 5.20. Employee Benefits....................................... 34
SECTION 5.21. Certegy Stock Incentive Plan Amendment.................. 35
ARTICLE VI CONDITIONS PRECEDENT.......................................... 35
SECTION 6.1. Conditions to Each Party's Obligation to Effect the
Merger.................................................. 35
SECTION 6.2. Conditions to Obligations of Company.................... 36
SECTION 6.3. Conditions to Obligation of FNF......................... 37
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER............................ 38
SECTION 7.1. Termination............................................. 38
SECTION 7.2. Effect of Termination................................... 39
SECTION 7.3. Amendment............................................... 39
SECTION 7.4. Consent; Extension; Waiver.............................. 40
ARTICLE VIII GENERAL PROVISIONS.......................................... 40
SECTION 8.1. Nonsurvival of Representations and Warranties........... 40
SECTION 8.2. Fees, Expenses and Transfer Taxes....................... 40
SECTION 8.3. Definitions............................................. 40
SECTION 8.4. Notices................................................. 44
SECTION 8.5. Interpretation.......................................... 45
SECTION 8.6. Counterparts............................................ 45
SECTION 8.7. Entire Agreement; Third-Party Beneficiaries............. 45
SECTION 8.8. Assignment.............................................. 45
SECTION 8.9. Governing Law........................................... 46
SECTION 8.10. Enforcement; Venue; Waiver of Jury Trial................ 46
SECTION 8.11. Severability............................................ 46
EXHIBITS
Exhibit A Securities Exchange and Distribution Agreement
Exhibit B Form of Assumption Agreement
Exhibit C Form of Affiliate Letter
Exhibit D Form of Cross-Indemnity Agreement
Exhibit E Form of Tax Disaffiliation Agreement
Exhibit F Form of FNF Officer's Certificate
Exhibit G Form of Company Officer's Certificate
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AGREEMENT AND PLAN OF MERGER, dated as of June 25, 2006 (this
"Agreement") between Fidelity National Information Services, Inc., a Georgia
corporation (the "Company"), and Fidelity National Financial, Inc., a Delaware
corporation ("FNF").
WHEREAS, the Board of Directors of each of the Company and FNF has
adopted resolutions approving this Agreement and the merger of FNF with and into
the Company (the "Merger") on the terms and subject to the conditions set forth
in this Agreement and in accordance with the General Corporation Law of the
State of Delaware (the "DGCL") and the Georgia Business Corporation Code (the
"GBCC");
WHEREAS, the Board of Directors of FNF, pursuant to the recommendation
of a special committee of independent members of the Board of Directors of FNF
(the "FNF Special Committee"), deems it advisable and in the best interests of
FNF and its stockholders, in order to advance the long-term business interest of
FNF, that it be merged with and into the Company, all upon the terms and subject
to the conditions of this Agreement;
WHEREAS, the Board of Directors of the Company, pursuant to the
recommendation of a special committee of independent members of the Board of
Directors of the Company (the "Company Special Committee"), deems it advisable
and in the best interests of the Company and its shareholders, in order to
advance the long-term business interest of the Company, that FNF be merged with
and into the Company, all upon the terms and subject to the conditions of this
Agreement;
WHEREAS, the Board of Directors of FNF has approved pursuing a plan
for the transfer, prior to the proposed Spin-off (as defined herein), to one of
its subsidiaries, Fidelity National Title Group, Inc. ("FNT"), of all of the
shares of capital stock of certain of its subsidiaries and other assets and
Liabilities (as defined herein), certain related reorganization transactions,
and the distribution immediately prior to the Effective Time (as defined herein)
of all the shares of capital stock of FNT held by FNF on a pro rata basis to the
holders of the common stock, par value $.0001 per share, of FNF ("FNF Common
Stock") as of the record date for such distribution (such distribution, the
"Spin-off"), all of the foregoing to be effected pursuant to the Securities
Exchange and Distribution Agreement, dated as of the date hereof and attached
hereto as Exhibit A between FNF and FNT (the "Securities Exchange Agreement"),
and the other agreements attached as annexes to or referred to in the Securities
Exchange Agreement (such agreements, together with the Securities Exchange
Agreement, the "Spin-Off Agreements"), all of which have been or will be
executed and delivered by FNF and the other parties thereto prior to the
Effective Time;
WHEREAS, it is intended that for U.S. federal income tax purposes, the
Merger shall qualify as a reorganization under the provisions of Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder (the "Code"), and this Agreement shall
constitute a plan of reorganization under Section 368(a) of the Code and the
parties hereto shall each be a party to such reorganization within the meaning
of the Code; and
WHEREAS, the Company and FNF desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also to
prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the adequacy of which is
hereby acknowledged by each party, the parties agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the DGCL and the GBCC, FNF
shall be merged with and into the Company at the Effective Time. At the
Effective Time, the separate corporate existence of FNF shall cease, and the
Company shall continue as the surviving corporation in the Merger (the
"Surviving Company").
SECTION 1.2. Closing. Unless this Agreement shall have been terminated
and the transactions herein contemplated shall have been abandoned pursuant to
Section 7.1 or unless otherwise mutually agreed in writing between the Company
and FNF, the closing of the Merger (the "Closing") will take place on the same
business day as, and immediately after, the completion of the Spin-off pursuant
to the Securities Exchange Agreement, subject to the fulfillment or waiver of
the conditions set forth in Article VI of this Agreement (other than those to be
fulfilled or waived as of the Closing, but subject to the fulfillment or waiver
of those conditions) in accordance with this Agreement, at the offices of
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
unless another date, time or place is agreed to in writing by the parties
hereto. The actual date and time of the Closing are herein referred to as the
"Closing Date". For purposes of this Agreement, the term "business day" shall
mean any day ending at 11:59 p.m. (Eastern Time) other than a Saturday or Sunday
or a day on which banks are required or authorized to close in The City of New
York.
SECTION 1.3. Effective Time. The parties hereto will (i) file with the
Secretary of State of the State of Georgia (the "Georgia Secretary of State") on
the date of the Closing (or on such other date as the Company and FNF may agree)
a certificate of merger (the "Georgia Certificate of Merger") relating to the
Merger and any other appropriate documents, executed in accordance with the
relevant provisions of the GBCC, (ii) file with the Secretary of State of the
State of Delaware (the "Delaware Secretary of State"), a certificate of merger
(the "Delaware Certificate of Merger") relating to the Merger, executed and
acknowledged in accordance with the relevant provisions of the DGCL and (iii)
make all other filings or recordings required under the GBCC and the DGCL in
connection with the Merger. The Merger shall become effective (the "Effective
Time") when the Georgia Certificate of Merger and the Delaware Certificate of
Merger have been duly filed with the Georgia Secretary of State and the Delaware
Secretary of State, respectively, or at such later time as may be agreed by the
parties and specified in the Georgia Certificate of Merger and the Delaware
Certificate of Merger.
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SECTION 1.4. Effects of the Merger. The Merger shall have the effects
set forth in the GBCC and the DGCL.
SECTION 1.5. Certificate of Incorporation and By-laws.
(i) The certificate of incorporation of the Company (the "Company
Charter"), as in effect immediately prior to the Effective Time, shall
be the certificate of incorporation of the Surviving Company until
thereafter changed or amended as provided therein or under applicable
law.
(ii) The by-laws of the Company (the "Company By-laws") as in
effect immediately prior to the Effective Time shall, from and after
the Effective Time, be the by-laws of the Surviving Company until
thereafter changed or amended as provided therein or under applicable
law.
SECTION 1.6. Directors and Officers.
(a) Directors. The parties hereto shall take all actions necessary so
that the board of directors of the Company at the Effective Time shall,
from and after the Effective Time, be comprised of the individuals set
forth in Section 1.6(a) of the Company Disclosure Schedule in the classes
set forth therein until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or
removal in accordance with the Company Charter and the Company By-Laws.
(b) Officers. The parties hereto shall take all actions necessary so
that the officers of the Company at the Effective Time and the individuals
specified in Section 1.6(b) of the Company Disclosure Schedule shall, from
and after the Effective Time, be the officers of the Surviving Corporation
until their successors have been duly elected or appointed and qualified or
until their earlier death, resignation or removal in accordance with the
Company Charter and the Company By-Laws.
(c) In the event that any person listed on Section 1.6(a) or 1.6(b) of
the Disclosure Schedule is unwilling or unable to serve in the capacity
indicated, FNF and the Company shall agree upon a substitute for such
person.
ARTICLE II
EFFECT OF THE MERGER ON THE SECURITIES
OF THE CONSTITUENT CORPORATIONS
SECTION 2.1. Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of FNF Common Stock, or any other shares of capital stock of FNF:
(a) Cancellation of Treasury Stock and Company-Owned Common Stock.
Each share of FNF Common Stock issued and outstanding immediately prior to
the Effective Time that is owned by FNF or by the Company or any Company
Subsidiary (as hereinafter defined) shall automatically cease to be
outstanding, be cancelled and retired
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and shall cease to exist, and no cash or other consideration shall be
delivered or deliverable in exchange therefor.
(b) Conversion of FNF Common Stock. Each share of FNF Common Stock
issued and outstanding immediately prior to the Effective Time, other than
shares to be cancelled in accordance with Section 2.1(a) (such shares, the
"Eligible Shares"), shall be converted into the right to receive the number
of validly issued, fully paid and nonassessable shares of the common stock
(the "Company Common Stock"), par value $.01 per share, of the Company (the
"Stock Consideration") equal to the Conversion Number. The "Conversion
Number" shall equal 96,214,500 divided by the number of Eligible Shares,
rounded to the nearest ten thousandth. The Stock Consideration and any cash
to be paid in accordance with Section 2.3 in lieu of fractional shares of
the Company Common Stock are referred to collectively as the "Merger
Consideration".
(c) Cancellation and Retirement of FNF Common Stock. As of the
Effective Time, all certificates representing Eligible Shares issued and
outstanding immediately prior to the Effective Time shall no longer be
outstanding and shall automatically be cancelled and retired and shall
cease to exist, and each holder of a certificate representing any such
shares of FNF Common Stock shall cease to have any rights with respect
thereto, except the right to receive the Merger Consideration upon
surrender of such certificate in accordance with Section 2.3, without
interest, and any dividend or other distribution pursuant to Section
2.3(d).
(d) FNF Restricted Stock. As of immediately prior to the Effective
Time, certain shares of FNF Common Stock which when issued were subject to
forfeiture under an FNF Stock Option Plan and which remain subject to
forfeiture immediately prior to the Effective Time (each, an "FNF
Restricted Share"), shall be replaced with restricted shares of FNT common
stock pursuant to the Securities Exchange Agreement. As of the Effective
Time, each FNF Restricted Share remaining outstanding (an "Assumed
Restricted Share") shall be included in the conversion and cancellation of
FNF Common Stock pursuant to Sections 2.1(b) and (c); provided, however,
that upon conversion, such shares shall continue to be subject to the same
terms, conditions and restrictions applicable to the corresponding FNF
Restricted Shares based upon continued service with Surviving Company and
its affiliates. All FNF Restricted Shares outstanding as of May 31, 2006
are disclosed in Section 2.1(d) of the FNF Disclosure Schedule. Section
2.1(d) of the FNF Disclosure Schedule also designates all FNF Restricted
Shares that, if outstanding at the Effective Time, will be Assumed
Restricted Shares.
SECTION 2.2. FNF Stock Option Plans.
(a) Prior to the Effective Time, certain outstanding options to
purchase shares of FNF Common Stock (an "FNF Stock Option") issued under
FNF's stock option plans and award agreements (collectively, the "FNF Stock
Option Plans") shall be replaced with options issued by FNT pursuant to the
Securities Exchange Agreement. As of the Effective Time, each FNF Stock
Option remaining outstanding designated as described below (an "Assumed
Option"), and each FNF Stock Option Plan under which any of the foregoing
were issued shall be assumed by the Company. All FNF Stock Options
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outstanding as of May 31, 2006 are disclosed in Section 2.2 of the
Disclosure Schedule delivered by FNF to the Company at or prior to the
execution of this Agreement (the "FNF Disclosure Schedule") and are
designated as vested or unvested. Section 2.2 of the FNF Disclosure
Schedule also designates all FNF Stock Options that, if outstanding at the
Effective Time, will be Assumed Options. Each Assumed Option shall be
exercisable for a number of shares of Company Common Stock calculated by
multiplying the number of shares of FNF Common Stock subject to such FNF
Stock Option as of the Effective Time by the Option Exchange Number,
rounding down to the nearest whole number. The "Option Exchange Number"
shall equal the closing price of a share of FNF Common Stock on the
business day immediately preceding the Closing Date divided by the closing
price of a share of Company Common Stock on the Closing Date (or, if the
Closing is consummated after the close of trading on the NYSE on such date,
on the next business day following the Closing Date), rounded to the
nearest ten thousandth. The exercise price for each share of Company Common
Stock under an Assumed Option shall be calculated by dividing the exercise
price for one share of FNF Common Stock under the related FNF Stock Option
as of the Effective Time by the Option Exchange Number, rounding up to the
nearest whole cent. No vesting schedule for any Assumed Option shall be
modified as a result of the transactions contemplated hereby.
Notwithstanding the foregoing, the assumption of FNF Stock Options pursuant
to this Section 2.2(a) shall in all circumstances satisfy Section
1.409A-1(b)(5)(v)(D) of the Proposed Regulations under Section 409A of the
Code or any future guidance issued thereunder.
(b) As soon as practicable after the Effective Time, the Company shall
deliver to each person who, immediately prior to the Effective Time, is the
holder of an Assumed Option an appropriate notice setting forth such
holder's rights pursuant thereto and that the agreements evidencing the
grants of such options shall continue in effect on the same terms and
conditions (subject to the adjustments required by this Section 2.2 after
giving effect to the Merger). At or before the Effective Time, the Company
shall take all corporate action necessary to reserve for issuance a
sufficient number of shares of Company Common Stock for delivery upon
exercise of Assumed Options. As soon as practicable after the Effective
Time (but in any event no later than 15 days following the Effective Time),
the Company shall file a registration statement on Form S-8 (or any
successor form) that will register the shares of Company Common Stock
subject to Assumed Options to the extent permitted by federal securities
laws and shall use its reasonable best efforts to maintain the
effectiveness of such registration statement or registration statements for
so long as such options remain outstanding. In addition, the Company shall
use all reasonable best efforts to cause the shares of Company Common Stock
subject to Assumed Options to be listed on the NYSE.
(c) Prior to the Effective Time, FNF shall take all corporate action
necessary such that the FNF Employee Stock Purchase Plan shall no longer be
sponsored or maintained by FNF and shall not become an obligation of the
Company as a result of the consummation of the transactions contemplated by
this Agreement. Any shares of FNF Common Stock held in, or distributed
from, the FNF Employee Stock Purchase Plan shall be included in the
conversion and cancellation of FNF Common Stock pursuant to Sections 2.1(b)
and (c).
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SECTION 2.3. Exchange of Certificates.
(a) Exchange Agent. As of the Effective Time, the Company shall
deposit with a bank or trust company designated by the Company with the
prior approval (such approval not to be unreasonably withheld or delayed)
of FNF (the "Exchange Agent"), for the benefit of the holders of Eligible
Shares (whether in certificated or book entry form), certificates or, at
the Company's option, shares in book entry form (collectively
"certificates") representing the aggregate Stock Consideration issuable
pursuant to Section 2.1 in exchange for such shares of FNF Common Stock.
Such certificates and all cash from sales of the aggregated fractional
shares pursuant to Section 2.3(f), together with any dividends or
distributions with respect to the Stock Consideration, are hereinafter
referred to as the "Exchange Fund".
(b) Exchange Procedures. As soon as practicable after the Effective
Time, each holder of an outstanding certificate or certificates which prior
thereto represented Eligible Shares shall, upon surrender to the Exchange
Agent of such certificate or certificates in accordance with the terms of
the transmittal materials described in Section 2.3(c) of this Agreement and
acceptance thereof by the Exchange Agent, be entitled to a certificate
representing that number of whole shares of Company Common Stock (and/or
cash in lieu of fractional shares of Company Common Stock as contemplated
by Section 2.3(f)) which the aggregate number of shares of FNF Common Stock
previously represented by such certificate or certificates surrendered
shall have been converted into the right to receive pursuant to Section
2.1(b) of this Agreement. The Exchange Agent shall accept such certificates
upon compliance with such reasonable terms and conditions as the Exchange
Agent may impose to effect an orderly exchange thereof in accordance with
normal exchange practices. If the consideration to be paid in the Merger
(or any portion thereof) is to be delivered to any person other than the
person in whose name the certificate representing shares of FNF Common
Stock surrendered in exchange therefor is registered, it shall be a
condition to such exchange that the certificate so surrendered shall be
properly endorsed or otherwise be in proper form for transfer and that the
person requesting such exchange shall pay to the Exchange Agent any
transfer or other taxes required by reason of the payment of such
consideration to a person other than the registered holder of the
certificate surrendered, or shall establish to the satisfaction of the
Exchange Agent that such tax has been paid or is not applicable. After the
Effective Time, there shall be no further transfer on the records of FNF or
its transfer agent of shares of FNF Common Stock and if such certificates
for Eligible Shares are presented to FNF for transfer, they shall be
cancelled against delivery of the Merger Consideration as hereinabove
provided. Until surrendered as contemplated by this Section 2.3(b), each
certificate representing Eligible Shares shall be deemed at any time after
the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration, without any interest thereon, as
contemplated by Section 2.1. No interest will be paid or will accrue on any
cash payable as Merger Consideration.
(c) Letter of Transmittal. Promptly after the Effective Time (but in
no event more than five business days thereafter), the Company shall
require the Exchange Agent to mail to each record holder of certificates
that immediately prior to the Effective Time represented shares of FNF
Common Stock which have been converted pursuant to
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Section 2.1, a letter of transmittal and instructions for use in
surrendering such certificates and receiving the consideration to which
such holder shall be entitled pursuant to Section 2.1, each in a form
reasonably satisfactory to FNF and the Company.
(d) Distributions with Respect to Unexchanged Shares; Voting. No
dividends or other distributions with respect to Company Common Stock with
a record date after the Effective Time shall be paid to the holder of any
certificate that immediately prior to the Effective Time represented shares
of FNF Common Stock which have been converted pursuant to Section 2.1,
until the surrender for exchange of such certificate in accordance with
this Article II. Following surrender for exchange of any such certificate,
there shall be paid to the holder of such certificate, without interest,
(i) at the time of such surrender, the amount of dividends or other
distributions with a record date after the Effective Time theretofore paid
with respect to the number of whole shares of Company Common Stock into
which the shares of FNF Common Stock represented by such certificate
immediately prior to the Effective Time were converted pursuant to Section
2.1, and (ii) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Effective Time, but prior
to such surrender, and with a payment date subsequent to such surrender,
payable with respect to such whole shares of Company Common Stock. Holders
of unsurrendered certificates shall be entitled to vote after the Effective
Time at any meeting of Company shareholders the number of whole shares of
Company Common Stock represented by such certificates, regardless of
whether such holders have exchanged their certificates.
(e) No Further Ownership Rights in Common Stock. The Merger
Consideration paid upon the surrender for exchange of certificates
representing shares of FNF Common Stock in accordance with the terms of
this Article II shall be deemed to have been issued and paid in full
satisfaction of all rights pertaining to the shares of FNF Common Stock
theretofore represented by such certificates, subject, however, to the
Company's obligation (if any) to pay any dividends or make any other
distributions with a record date prior to the Effective Time which may have
been declared by FNF on such shares of FNF Common Stock in accordance with
the terms of or contemplated by this Agreement which remain unpaid at the
Effective Time.
(f) No Fractional Shares.
(i) No certificates or scrip representing fractional shares of
Company Common Stock shall be issued upon the surrender for exchange
of certificates that immediately prior to the Effective Time
represented shares of FNF Common Stock which have been converted
pursuant to Section 2.1, and such fractional share interests will not
entitle the owner thereof to vote or to any rights of a shareholder of
the Company.
(ii) Notwithstanding any other provision in this Agreement to the
contrary, any holder of shares of FNF Common Stock entitled to receive
a fractional share of Company Common Stock but for this Section shall
be entitled to receive a cash payment in lieu thereof, in an amount
equal to such holder's proportionate interest in the net proceeds from
the sale or sales in the open market
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by the Exchange Agent, on behalf of all such holders, of the shares of
Company Common Stock constituting the excess of (i) the number of
whole shares of Company Common Stock delivered to the Exchange Agent
by the Company over (ii) the aggregate number of whole shares of
Company Common Stock to be distributed to holders of FNF Common Stock
(such excess, the "Excess Shares"). As soon as practicable following
the Effective Time, the Exchange Agent shall determine the number of
Excess Shares and, as agent for the former holders of FNF Common
Stock, shall sell the Excess Shares at the prevailing prices on the
New York Stock Exchange, Inc. (the "NYSE"). The Exchange Agent shall
deduct from the proceeds of the sale of the Excess Shares all
commissions, withholding taxes, transfer taxes and other out-of-pocket
transaction costs, including the expenses and compensation of the
Exchange Agent, incurred in connection with such sale of Excess
Shares. Until the net proceeds of such sale have been distributed to
the former holders of FNF Common Stock, the Exchange Agent will hold
such proceeds in trust for such former holders. As soon as practicable
after the determination of the amount of cash to be paid to such
former holders in lieu of any fractional interests, the Exchange Agent
shall make available in accordance with this Agreement such amounts to
such holders.
(g) Termination of Exchange Fund. Any portion of the Exchange Fund
(including the proceeds of any investments thereof) which remains
undistributed to the holders of the certificates representing shares of FNF
Common Stock for 120 days after the Effective Time shall be delivered to
the Company, and any holders of shares of FNF Common Stock who have not
theretofore complied with this Article II shall thereafter look only to the
Company for payment of their claim for any Merger Consideration and any
dividends or distributions with respect to Company Common Stock.
(h) No Liability. None of the Company, the Surviving Company or the
Exchange Agent shall be liable to any person in respect of any shares,
cash, dividends or distributions payable from the Exchange Fund delivered
to a public official pursuant to any applicable abandoned property, escheat
or similar law. If any certificates representing shares of FNF Common Stock
shall not have been surrendered prior to five years after the Effective
Time (or immediately prior to such earlier date on which any Merger
Consideration in respect of such certificate would otherwise escheat to or
become the property of any Governmental Entity), any such shares, cash,
dividends or distributions payable in respect of such certificate shall, to
the extent permitted by applicable law, become the property of the
Surviving Company, free and clear of all claims or interest of any person
previously entitled thereto.
(i) Lost, Stolen or Destroyed Certificates. In the event that any
certificate representing shares of FNF Common Stock shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such certificate to be lost, stolen or destroyed and, if
required by Company, the posting by such person of a bond in customary
amount and upon such terms as may be required by the Company as indemnity
against any claim that may be made against it with respect to such
certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed certificate the shares of Company Common Stock and any
cash, unpaid dividends or other
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distributions that would be payable or deliverable in respect thereof
pursuant to this Agreement had such lost, stolen or destroyed certificate
been surrendered.
(j) Withholding Rights. The Company and the Exchange Agent shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of Shares such amounts as it is
required to deduct and withhold with respect to the making of such payment
under the Code or any other applicable state, local or foreign tax law. To
the extent that amounts are so withheld, such withheld amounts (i) shall be
remitted by the Company to the applicable Governmental Entity, and (ii)
shall be treated for all purposes of this Agreement as having been paid to
the holder of shares of FNF Common Stock in respect of which such deduction
and withholding was made by the Company or the Exchange Agent.
(k) Adjustments. Notwithstanding anything in this Agreement to the
contrary, if, between the date of this Agreement and the Effective Time,
the issued and outstanding shares of Company Common Stock or securities
convertible or exchangeable into or exercisable for shares of Company
Common Stock or the issued and outstanding shares of FNF Common Stock or
securities convertible or exchangeable into or exercisable for shares of
FNF Common Stock, shall have been changed into a different number of shares
or a different class by reason of any reclassification, stock split
(including a reverse stock split), stock dividend or distribution,
recapitalization, redenomination, merger (but only a merger involving the
Company and not FNF), issuer tender or exchange offer, or other similar
transaction, then the Merger Consideration and any other dependent items
shall be equitably adjusted and as so adjusted shall, from and after the
date of such event, be the Merger Consideration or other dependent item.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of FNF. FNF represents and
warrants to the Company as follows:
(a) Organization, Standing and Corporate Power. FNF is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware and has the requisite corporate power and authority to carry on
its business as now being conducted. FNF is duly qualified to do business
and is in good standing in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such
qualification necessary, other than in such jurisdictions where the failure
to be so qualified (individually or in the aggregate) would not have an FNF
Material Adverse Effect. The term "FNF Material Adverse Effect" means any
material adverse effect on the ability of FNF to perform its obligations
hereunder, or to consummate the transactions contemplated hereby, on a
timely basis. FNF has delivered or made available to the Company complete
and correct copies of its Certificate of Incorporation (the "FNF Charter")
and By-laws (the "FNF By-laws"), in each case as amended to the date of
this Agreement.
-9-
(b) Capital Structure. The authorized capital stock of FNF consists of
(i) 250,000,000 shares of FNF Common Stock and (ii) 3,000,000 shares of
preferred stock. At the close of business on May 31, 2006, 175,790,428
shares of FNF Common Stock were issued and outstanding, 13,608,696 shares
of FNF Common Stock were reserved for issuance pursuant to outstanding
options under FNF Stock Option Plans and 8,021,507 shares of FNF Common
Stock were held by FNF in its treasury. Except as set forth above, at the
close of business on May 31, 2006, no shares of capital stock or other
equity securities of FNF were issued, reserved for issuance or outstanding.
All outstanding shares of capital stock of FNF are, and all shares which
may be issued pursuant to the FNF Stock Option Plans will be, when issued,
duly authorized, validly issued, fully paid and nonassessable and not
subject to preemptive rights. No bonds, debentures, notes or other
indebtedness of FNF having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on
which the stockholders of FNF may vote are issued or outstanding. Except as
set forth above or in Section 3.1(b) of the FNF Disclosure Schedule, there
are not any securities, options, warrants, rights, commitments or
agreements of any kind to which FNF is a party or by which it is bound
obligating it to issue, sell or deliver, or repurchase, redeem or otherwise
acquire, shares of capital stock or other equity or voting securities of
FNF, or obligating it to issue, sell, deliver, grant, extend or enter into
any such security, option, warrant, right, commitment or agreement. Except
as disclosed in Section 3.1(b) of the FNF Disclosure Schedule, FNF is not a
party to or bound by any agreement, proxy or other arrangement restricting
the transfer of FNF Common Stock or affecting the voting of any shares of
capital stock of FNF.
(c) Authority; Noncontravention. FNF has the requisite corporate power
and authority to enter into this Agreement and, subject to the approval of
its stockholders as set forth in Section 5.3 (the "FNF Stockholder
Approval"), to consummate the transactions contemplated by this Agreement.
The execution and delivery of this Agreement by FNF and the consummation by
FNF of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of FNF, subject to the approval
of its stockholders as set forth in Section 6.1(a). This Agreement has been
duly executed and delivered by FNF and, assuming this Agreement constitutes
the valid and binding agreement of the Company, constitutes a valid and
binding obligation of FNF, enforceable against FNF in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency
(including all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting creditors' rights generally and
subject to the effect of general principles of equity. Except as disclosed
in Section 3.1(c) of the FNF Disclosure Schedule, the execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions hereof
will not, (i) conflict with any of the provisions of the FNF Charter or FNF
By-laws, (ii) subject to the matters referred to in the next sentence,
conflict with, result in a breach of or default (with or without notice or
lapse of time, or both) under, give rise to a right of termination,
cancellation or acceleration of any obligation or loss of a material
benefit under, require the consent of any person under, or result in the
creation of any Lien on any property or asset of FNF under, any indenture
or other agreement, permit, franchise, license or other instrument or
undertaking to which FNF is a party or by which FNF or any of its assets is
bound or affected, or (iii) subject to
-10-
the matters referred to in the next sentence, contravene any statute, law,
ordinance, rule, regulation, order, judgment, injunction, decree,
determination or award applicable to FNF or any of its properties or
assets, which, in the case of clauses (ii) and (iii), individually or in
the aggregate, would reasonably be expected to have an FNF Material Adverse
Effect. No consent, approval or authorization of, or declaration or filing
with, or notice to, any court or governmental or regulatory authority or
agency, domestic or foreign (a "Governmental Entity"), is required by or
with respect to FNF in connection with the execution and delivery of this
Agreement by FNF or the consummation by FNF of the transactions
contemplated hereby, except for (i) the approvals, filings and/or notices
required under the insurance laws of the jurisdictions set forth in Section
3.1(c)(i) of the FNF Disclosure Schedule, (ii) the filing with the
Securities and Exchange Commission (the "SEC") of such reports and other
filings under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as may be required in connection with this Agreement and
the transactions contemplated by this Agreement, (iii) the filing of the
Delaware Certificate of Merger and the Georgia Certificate of Merger with
the Delaware Secretary of State and the Georgia Secretary of State,
respectively, and appropriate documents with the relevant authorities of
other states in which FNF is qualified to do business, (iv) such other
consents, approvals, authorizations, declarations, filings or notices as
are set forth in Section 3.1(c)(ii) of the FNF Disclosure Schedule and (v)
such other consents, approvals, authorizations, declarations, filings or
notices the failure to obtain or make which, in the aggregate, would not
have an FNF Material Adverse Effect.
(d) SEC Documents; Financial Statements. FNF has filed all required
reports, schedules, forms, statements and other documents with the SEC
since January 1, 2003 (such reports, schedules, forms, statements and other
documents, as amended to the date hereof, are hereinafter referred to as
the "FNF SEC Documents"). As of their respective dates, the FNF SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or the Exchange
Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such FNF SEC Documents, and none of
the FNF SEC Documents as of such dates contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. Except to the
extent that information contained in any FNF SEC Document has been revised
or superseded by a later Filed FNF SEC Document (as defined herein), none
of the FNF SEC Documents contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The consolidated
financial statements of FNF included in the FNF SEC Documents comply as to
form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto, have
been prepared in accordance with generally accepted accounting principles
(except, in the case of unaudited consolidated quarterly statements, as
permitted by Form 10-Q of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and
present fairly, in all material respects, the consolidated financial
position of FNF and its consolidated subsidiaries as of the dates thereof
and the consolidated results of their operations and cash flows for the
periods then ended (subject,
-11-
in the case of unaudited quarterly statements, to normal year-end
adjustments). Except as set forth in the Filed FNF SEC Documents, as of the
date hereof, FNF has no Liabilities required by generally accepted
accounting principles to be set forth on a consolidated balance sheet of
FNF and its consolidated subsidiaries or in the notes thereto, other than
Liabilities (i) incurred since March 31, 2006 in the ordinary course of
business consistent with past practice or (ii) that would not, individually
or in the aggregate, reasonably be expected to have an FNF Material Adverse
Effect.
(e) Absence of Certain Changes or Events. Except as disclosed in the
FNF SEC Documents filed and publicly available prior to the date of this
Agreement (the "Filed FNF SEC Documents") or in Section 3.1(e) of the FNF
Disclosure Schedule or in connection with the transactions contemplated
hereby, since the date of the most recent audited financial statements
included in the Filed FNF SEC Documents, FNF has conducted its business
only in the ordinary course, and there has not been (i) any change,
circumstance, effect, event, development or occurrence that, individually
or in the aggregate, has had or would reasonably be expected to have an FNF
Material Adverse Effect, (ii) any declaration, setting aside or payment of
any dividend or other distribution (whether in cash, stock or property)
with respect to any of FNF's outstanding capital stock (except for ordinary
quarterly cash dividends), (iii) any split, combination or reclassification
of any of its outstanding capital stock or any issuance or the
authorization of any issuance of any other securities in respect of, in
lieu of or in substitution for shares of its outstanding capital stock,
(iv) (x) any granting by FNF to any of the President, the Chief Executive
Officer, the Chief Financial Officer, the General Counsel or any Executive
Vice President (the "Executive Officers") of FNF of any increase in
compensation, except in the ordinary course of business consistent with
prior practice or as was required under employment agreements in effect as
of the date of the most recent audited financial statements included in the
Filed FNF SEC Documents, (y) any granting by FNF to any such Executive
Officer of any increase in severance or termination pay, except as was
required under any employment, severance or termination agreements in
effect as of the date of the most recent audited financial statements
included in the Filed FNF SEC Documents or (z) any entry by FNF into any
employment, severance or termination agreement with any such Executive
Officer or (v) any change in accounting methods, principles or practices by
FNF materially affecting its assets, Liabilities or business, except
insofar as may have been required by a change in generally accepted
accounting principles.
(f) Absence of Changes in Benefit Plans. Except as disclosed in the
Filed FNF SEC Documents or in Section 3.1(f) of the FNF Disclosure
Schedule, since the date of the most recent audited financial statements
included in the Filed FNF SEC Documents, there has not been any adoption or
amendment in any material respect by FNF of any collective bargaining
agreement or any Benefit Plan (as defined herein).
(g) Benefit Plans.
(i) Each "employee pension benefit plan" (as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (hereinafter a "Pension Plan"), "employee welfare
benefit plan" (as defined in
-12-
Section 3(1) of ERISA) (hereinafter a "Welfare Plan"), and each other
plan, arrangement or policy relating to compensation, deferred
compensation, severance, fringe benefits or other employee benefits,
in each case maintained or contributed to, or required to be
maintained or contributed to, by FNF for the benefit of any present or
former officer, employee, agent, director or independent contractor of
FNF or any subsidiary thereof (including FNT and the Company) (all the
foregoing being herein called "Benefit Plans") has been administered
in accordance with its terms except where failure to administer in
accordance with such terms would not have an FNF Material Adverse
Effect. FNF and all the Benefit Plans are in compliance with the
applicable provisions of ERISA, the Code, all other applicable laws
and all applicable collective bargaining agreements except where
failure to comply would not reasonably be expected to have an FNF
Material Adverse Effect. A complete and correct copy of each Benefit
Plan (other than any Benefit Plan maintained or sponsored by FNT or
any of its subsidiaries), and the most recent trust agreement,
custodial agreement or insurance contract relating thereto, have been
made available to the Company. Section 3.1(g) of the FNF Disclosure
Schedule sets forth a complete and correct list of each employment
contract as to which FNF has any obligation or liability, contingent
or otherwise.
(ii) None of FNF or any other person or entity that together with
FNF is treated as a single employer under Section 414(b), (c), (m) or
(o) of the Code (each a "Commonly Controlled Entity") has incurred any
material liability under Title IV of ERISA (other than for the payment
of benefits or Pension Benefit Guaranty Corporation insurance
premiums, in either case in the ordinary course).
(iii) No Commonly Controlled Entity is obligated to contribute to
any "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA)
or has withdrawn from or incurred any contractual liability to any
multiemployer plan resulting or which would reasonably be expected to
result in any material "withdrawal liability" (within the meaning of
Section 4201 of ERISA) that has not been fully paid.
(h) Taxes. (i) FNF has filed all tax returns and reports required to
be filed by it or requests for extensions to file such returns or reports
have been timely filed, granted and have not expired, except to the extent
that such failures to file or to have extensions granted that remain in
effect individually and in the aggregate would not have an FNF Material
Adverse Effect. All tax returns filed by FNF are complete and accurate
except to the extent that such failure to be complete and accurate would
not have an FNF Material Adverse Effect. FNF has paid or caused to be paid
all taxes shown as due on such returns, and the most recent financial
statements contained in the Filed FNF SEC Documents reflect an adequate
reserve for all taxes payable by FNF and its subsidiaries for all taxable
periods and portions thereof accrued through the date of such financial
statements.
(ii) No deficiencies for any taxes have been proposed, asserted
or assessed against FNF that are not adequately reserved for, except
for deficiencies
-13-
that individually or in the aggregate would not have an FNF Material
Adverse Effect, and, except as set forth in Section 3.1(h) of the FNF
Disclosure Schedule, no requests for waivers of the time to assess any
such taxes have been granted or are pending. The Federal and state
income tax returns of FNF and each of its subsidiaries consolidated in
such returns have been examined by and settled with the United States
Internal Revenue Service (the "IRS") or the appropriate state taxation
authorities, as the case may be, or the statute of limitations on
assessment or collection of any Federal or state income taxes due from
FNF or any of its subsidiaries has expired, for all taxable years of
FNF or any of its subsidiaries through the taxable year ended (a)
December 31, 2001 for Federal income taxes and (b) December 31, 1999
for state income taxes.
(iii) As used in this Agreement, "taxes" shall include all
federal, state, local and foreign income, premium, property, sales,
excise, employment, payroll, withholdings and other taxes, tariffs or
other governmental charges, including interest, penalties and other
additions thereto.
(i) No Excess Parachute Payments; Section 162(m) of the Code.
(i) None of the transactions contemplated by this Agreement shall
constitute a triggering event under any employment, severance or
termination agreement or other compensation arrangement or Benefit
Plan currently in effect which (either alone or upon the occurrence of
any additional or subsequent event) would reasonably be expected to
result in any payment, acceleration, vesting or increase in benefits
to any current or former officer, employee or director of FNF and
which would constitute an "excess parachute payment" (as such term is
defined in Section 280G(b)(1) of the Code).
(ii) Except as disclosed in Section 3.1(i) of the FNF Disclosure
Schedule, the disallowance of a deduction under Section 162(m) of the
Code for employee remuneration will not apply to any amount paid or
payable by FNF under any contract, Benefit Plan, program, arrangement
or understanding currently in effect.
(j) Voting Requirements. The affirmative vote of holders of a majority
of the shares of FNF Common Stock (with each share of FNF Common Stock
having one vote per share) to approve and adopt this Agreement and the
Merger is the only vote of the holders of any class or series of the
capital stock of FNF necessary to approve and adopt this Agreement and the
Merger and the transactions contemplated hereby.
(k) Compliance with Applicable Laws. FNF has in full force and effect
all Federal, state, local and foreign governmental approvals,
authorizations, certificates, consents, filings, franchises, licenses,
notices, permits and rights (collectively, "Permits") necessary for it to
own, lease or operate its properties and assets and to carry on its
business as now conducted, and there has occurred no default under any such
Permit, in each case except for the failure of Permits to be in full force
and effect or for defaults under Permits which failures or defaults
individually or in the aggregate would not
-14-
reasonably be expected to have an FNF Material Adverse Effect. Except as
disclosed in the Filed FNF SEC Documents, FNF and the FNF Subsidiaries are
in compliance with all applicable statutes, laws, ordinances, rules,
regulations and orders of any Governmental Entity, except for such
noncompliance which individually or in the aggregate would not reasonably
be expected to have an FNF Material Adverse Effect. Except as disclosed in
the Filed FNF SEC Documents, as of the date of this Agreement, to the
knowledge of FNF, no investigation, examination, inquiry, enforcement
action or other proceeding by any Governmental Entity with respect to FNF
is pending or threatened, other than, in each case, those the outcome of
which, as far as reasonably can be foreseen, will not have a FNF Material
Adverse Effect.
(l) Opinion of Financial Advisor. FNF has received the opinion of its
financial advisor, Bear ▇▇▇▇▇▇▇ & Co. Inc., dated the date hereof, to the
effect that, as of such date, the consideration to be received by FNF and
its stockholders pursuant to this Agreement and the Securities Exchange
Agreement, taken together, is fair, from a financial point of view, to the
stockholders of FNF. It is agreed and understood that such opinion is for
the benefit of FNF's board of directors and may not be relied on by the
Company.
(m) Brokers. No broker, investment banker, financial advisor or other
person, other than Bear ▇▇▇▇▇▇▇ & Co. Inc., the fees and expenses of which
will be paid by FNF prior to the Effective Time, is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission
in connection with the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of FNF.
(n) The FNF Special Committee Recommendation; Board of Directors
Recommendation. The FNF Special Committee has duly adopted at a special
meeting held on June 25, 2006, resolutions recommending to the Board of
Directors of FNF approval of this Agreement, the Merger, and the
transactions contemplated hereby on the terms and conditions set forth
herein. Upon the recommendation of FNF Special Committee, the Board of
Directors of FNF, by resolutions duly adopted at a meeting duly called and
held, has duly (i) determined that this Agreement and the Merger and the
other transactions contemplated hereby are fair to and in the best
interests of FNF and its stockholders, (ii) approved and declared advisable
this Agreement and the Merger and the other transactions contemplated
hereby and (iii) recommended that the stockholders of FNF adopt this
Agreement and the Merger and the transactions contemplated hereby and
directed that this Agreement and the Merger and the transactions
contemplated hereby be submitted for adoption by FNF's stockholders at the
FNF Stockholders Meeting (as defined herein).
(o) Litigation. There is no suit, action, proceeding or arbitration
pending or, to the knowledge of FNF, threatened against or affecting FNF
that, individually or in the aggregate, would reasonably be expected to (i)
have an FNF Material Adverse Effect or (ii) prevent the consummation of any
of the transactions contemplated by this Agreement, nor is there any
judgment, decree, injunction or order of any Governmental Entity or
arbitrator outstanding against FNF having, or which would reasonably be
expected to have, any such effect.
-15-
(p) No Assets and Liabilities. At the Effective Time, FNF will not own
any assets other than the Assumption Agreement executed and delivered by
FNT substantially in the form attached hereto as Exhibit B pursuant to the
Securities Exchange Agreement (the "Assumption Agreement"), the Tax
Disaffiliation Agreement (as defined herein) and shares of Company Common
Stock, and will not have any Liabilities that have not been assumed by FNT,
other than the Excluded FNF Liabilities.
(q) Information Supplied. None of the information supplied or to be
supplied by FNF specifically for inclusion or incorporation by reference in
(i) the registration statement on Form S-4 to be filed with the SEC by the
Company in connection with the issuance of Company Common Stock in the
Merger (the "Form S-4") will at the time it becomes effective under the
Securities Act, at the time any amendment or supplement thereto becomes
effective under the Securities Act or at the Effective Time, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or (ii) the information statement relating to the approval
by the shareholders of the Company of the matters referred to in the second
sentence of Section 5.3 and the proxy statement relating to the approval by
the stockholders of FNF of the matters referred to in the first sentence of
Section 5.3, in each case as amended or supplemented from time to time
(collectively, the "Proxy Statement") will, at the date it is first mailed
to the Company's shareholders or the FNF stockholders, as applicable, and
at the time of the Company Shareholders Meeting (as defined herein) and the
FNF Stockholders Meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(r) Section 203. FNF has taken all corporate action necessary to
render inapplicable to the Merger, this Agreement and the transactions
contemplated hereby, the provisions of Section 203 of the DGCL.
SECTION 3.2. Representations and Warranties of the Company. The
Company represents and warrants to FNF as follows:
(a) Organization, Standing and Corporate Power. The Company and each
Company Subsidiary is a corporation, limited partnership, limited liability
company or other legal entity duly organized, validly existing and in good
standing (in such jurisdictions where such concept is applicable) under the
laws of the jurisdiction of its organization and has the requisite
corporate or entity power and authority to carry on its business as now
being conducted. The Company and each Company Subsidiary is duly qualified
to do business and is in good standing (in such jurisdictions where such
concept is applicable) in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such
qualification necessary, other than in such jurisdictions where the failure
to be so qualified (individually or in the aggregate) would not have a
Company Material Adverse Effect (as hereinafter defined). For purposes of
this Agreement, (x) a "Company Subsidiary" means each subsidiary of the
Company, and (y) a "Company Material Adverse Effect" means any change,
circumstance, effect, event or occurrence that (i) would be materially
adverse to the assets, Liabilities, business,
-16-
financial condition or results of operations of the Company and the Company
Subsidiaries taken as a whole, other than any change, circumstance, effect,
event or occurrence resulting from (A) changes in general economic
conditions affecting the United States, (B) general changes or developments
in the industries in which the Company and the Company Subsidiaries operate
or (C) the announcement of this Agreement and the transactions contemplated
hereby, including any termination of, reduction in or similar negative
impact on the relationships, contractual or otherwise, with any customers,
distributors, partners or employees of the Company and the Company
Subsidiaries to the extent due to the announcement of this Agreement and
the transactions contemplated hereby, including any termination of,
reduction in or similar negative impact on the relationships, contractual
or otherwise, with any customers, distributors, partners or employees of
FNF to the extent due to the announcement of this Agreement or the identity
of the parties hereto, unless, in the case of the foregoing clauses (A) and
(B), such changes referred to therein have a materially disproportionate
effect on the Company and the Company Subsidiaries taken as a whole
relative to other participants in the industry in which the Company and the
Company Subsidiaries operate, or (ii) would have a material adverse effect
on the ability of the Company to perform its obligations hereunder or to
consummate the transactions contemplated hereby on a timely basis. The
Company has delivered or made available to FNF complete and correct copies
of the Company Charter and the Company By-laws and of the certificates of
incorporation and by-laws, or other organizational documents, of each of
the Company Subsidiaries, in each case as amended to the date of this
Agreement.
(b) Capital Structure.
(i) The authorized capital stock of the Company consists of
600,000,000 shares of Company Common Stock, par value $.01 per share,
and 200,000,000 shares of preferred stock, par value $.01 per share.
At the close of business on May 31, 2006, (i) 191,742,076 shares of
Company Common Stock and no shares of preferred stock were issued and
outstanding, (ii) 5,684,520 shares of Company Common Stock were held
by subsidiaries of the Company or by the Company in its treasury and
(iii) 13,579,610 shares of Company Common Stock were reserved for
issuance pursuant to outstanding options to purchase shares of Company
Common Stock granted under the Company's stock option plans (the
"Company Stock Plans"). Except as set forth above, at the close of
business on May 31, 2006, no shares of capital stock or other equity
securities of the Company were issued, reserved for issuance or
outstanding. All outstanding shares of capital stock of the Company
are, and all shares which may be issued pursuant to this Agreement or
upon the exercise of options under the Company Stock Plans will be,
when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. No bonds,
debentures, notes or other indebtedness of the Company having the
right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which the shareholders of
the Company may vote are issued or outstanding. Except as set forth
above, there are not any securities, options, warrants, rights,
commitments or agreements of any kind to which the Company is a party
or by which any of them is bound obligating any of them to issue, sell
or deliver, or
-17-
repurchase, redeem or otherwise acquire, shares of capital stock or
other equity or voting securities of the Company, or obligating the
Company to issue, sell, deliver, grant, extend or enter into any such
security, option, warrant, right, commitment or agreement. Except as
set forth in Section 3.2(b)(i) of the Disclosure Schedule delivered by
the Company to FNF at or prior to the execution of this Agreement (the
"Company Disclosure Schedule"), the Company is not a party to or
bound by any agreement, proxy or other arrangement restricting the
transfer of Company Common Stock or affecting the voting of any shares
of capital stock of the Company.
(ii) Section 3.2(b)(ii) of the Company Disclosure Schedule lists
each Company Subsidiary. Except as set forth in Section 3.2(b)(ii) of
the Company Disclosure Schedule, all of the outstanding shares of
capital stock or other equity securities of each Company Subsidiary
have been validly issued and are fully paid and non-assessable (in the
case of any Company Subsidiary that is not organized in the United
States, to the extent such concepts are applicable) and are owned by
the Company, free and clear of all Liens. No bonds, debentures, notes
or other indebtedness of any Company Subsidiary having the right to
vote (or convertible into, or exchangeable for, securities having the
right to vote) on any matters on which the shareholders of any Company
Subsidiary may vote are issued or outstanding. Except as set forth in
Section 3.2(b)(ii) of the Company Disclosure Schedule, there are no
securities, options, warrants, rights, commitments or agreements of
any kind to which the Company or any Company Subsidiary is a party or
by which any of them is bound obligating any of them to issue, sell or
deliver, or repurchase, redeem or otherwise acquire, shares of capital
stock or other equity or voting securities of any Company Subsidiary,
or obligating any of them to issue, sell, deliver, grant, extend or
enter into any such security, option, warrant, right, commitment or
agreement. Except as set forth in Section 3.2(b)(ii) of the Company
Disclosure Schedule, neither the Company nor any Company Subsidiary is
a party to or bound by any agreement, proxy or other arrangement
restricting the transfer or affecting the voting of any shares of
capital stock of any Company Subsidiary. Except for the capital stock
or other equity securities of such subsidiaries and the other
ownership interests listed in Section 3.2(b)(ii) of the Company
Disclosure Schedule, the Company does not own, directly or indirectly,
any capital stock or other ownership interest in any person other than
interests held for investment purposes that do not exceed 10% of the
voting securities of any such single person.
(c) Authority; Noncontravention. The Company has all requisite
corporate power and authority to enter into this Agreement and, subject to
the approval of its shareholders as set forth in Section 5.3 (the "Company
Shareholder Approval"), the Company and each of the Company Subsidiaries
has all requisite corporate power and authority to consummate the
transactions contemplated by this Agreement. The execution and delivery of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated by this Agreement have been duly authorized by
all necessary corporate action on the part of the Company, subject to the
Company Shareholder Approval. This Agreement has been duly executed and
delivered by the
-18-
Company and, assuming this Agreement constitutes the valid and binding
agreement of FNF, constitutes a valid and binding obligation of the
Company, enforceable against it in accordance with its terms, subject to
the effect of any applicable bankruptcy, insolvency (including all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting creditors' rights generally and subject to the effect of
general principles of equity. Except as disclosed in Section 3.2(c) of the
Company Disclosure Schedule, the execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this Agreement will not,
(i) conflict with any of the provisions of the Company Charter or the
Company By-laws, (ii) subject to the matters referred to in the next
sentence, conflict with, result in a breach of or default (with or without
notice or lapse of time, or both) under, give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a
material benefit under, require the consent of any person under, or result
in the creation of any Lien on any property or asset of the Company or any
Company Subsidiary under, any indenture or other agreement, permit,
franchise, license or other instrument or undertaking to which the Company
or any of the Company Subsidiaries is a party or by which the Company or
any of the Company Subsidiaries or any of their assets is bound or
affected, or (iii) subject to the matters referred to in the next sentence,
contravene any statute, law, ordinance, rule, regulation, order, judgment,
injunction, decree, determination or award applicable to the Company or any
of the Company Subsidiaries or any of their respective properties or
assets, which, in the case of clauses (ii) and (iii), individually or in
the aggregate, would reasonably be expected to have a Company Material
Adverse Effect. No consent, approval or authorization of, or declaration or
filing with, or notice to, any Governmental Entity is required by or with
respect to the Company or any of the Company Subsidiaries in connection
with the execution and delivery of this Agreement by the Company or the
consummation by the Company or any Company Subsidiary, as the case may be,
of any of the transactions contemplated by this Agreement, except for (i)
the filing of premerger notification and report forms under the ▇▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act")
with respect to the Merger, (ii) the approvals, filings and/or notices
required under the insurance laws of the jurisdictions set forth in Section
3.2(c)(i) of the Company Disclosure Schedule, (iii) the filing with the SEC
of such reports and other filings under the Exchange Act as may be required
in connection with this Agreement and the transactions contemplated by this
Agreement, (iv) the filing with the SEC of the Form S-4 and the Proxy
Statement relating to the matters referred to in the first and second
sentences of Section 5.3, (v) the filing of the certificate of merger with
the Delaware Secretary of State and the Georgia Secretary of State, and
appropriate documents with the relevant authorities of other states in
which the Company is qualified to do business, (vi) such other consents,
approvals, authorizations, filings or notices as are set forth in Section
3.2(c)(ii) of the Company Disclosure Schedule and (vii) such other
consents, approvals, authorizations, declarations, filings or notices the
failure to obtain or make which, in the aggregate, would not have a Company
Material Adverse Effect.
(d) SEC Documents; Financial Statements. (i) The Company has filed all
required reports, schedules, forms, statements and other documents with the
SEC since January 1, 2003 (such reports, schedules, forms, statements and
other documents, as
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amended to the date hereof, the "Company SEC Documents"). As of their
respective dates, the Company SEC Documents complied in all material
respects with the requirements of the Securities Act or the Exchange Act,
as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such Company SEC Documents, and none of the
Company SEC Documents as of such dates contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. Except to the
extent that information contained in any Company SEC Document has been
revised or superseded by a later Filed Company SEC Document (as defined
herein), none of the Company SEC Documents contains any untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
consolidated financial statements of the Company included in the Company
SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with generally
accepted accounting principles (except, in the case of unaudited
consolidated quarterly statements, as permitted by Form 10-Q of the SEC)
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and present fairly, in all material
respects, the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended
(subject, in the case of unaudited quarterly statements, to normal year-end
audit adjustments). Except as set forth in the Filed Company SEC Documents,
neither the Company nor any of its subsidiaries has any Liabilities
required by generally accepted accounting principles to be set forth on a
consolidated balance sheet of the Company and its consolidated subsidiaries
or in the notes thereto, other than Liabilities (i) incurred since March
31, 2006 in the ordinary course of business consistent with past practice
or (ii) that would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.
(e) Absence of Certain Changes or Events. Except as disclosed in the
Company SEC Documents filed and publicly available prior to the date of
this Agreement (the "Filed Company SEC Documents") or in Section 3.2(e) of
the Company Disclosure Schedule or in connection with the transactions
contemplated hereby, since the date of the most recent audited financial
statements included in the Filed Company SEC Documents, the Company and
each Company Subsidiary has conducted its business only in the ordinary
course, and there has not been (i) any change, circumstance, effect, event,
development or occurrence that, individually or in the aggregate, has had
or would reasonably be expected to have a Company Material Adverse Effect,
(ii) any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to any of
the Company's outstanding capital stock (except for ordinary quarterly cash
dividends), (iii) any split, combination or reclassification of any of its
outstanding capital stock or any issuance or the authorization of any
issuance of any other securities in respect of, in lieu of or in
substitution for shares of its outstanding capital stock, (iv) (x) any
granting by the Company or any Company Subsidiary to any Executive Officers
of the Company of any increase in compensation, except in the
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ordinary course of business consistent with prior practice or as was
required under employment agreements in effect as of the date of the most
recent audited financial statements included in the Filed Company SEC
Documents, (y) any granting by the Company or any Company Subsidiary to any
such Executive Officer of the Company of any increase in severance or
termination pay, except as was required under any employment, severance or
termination agreements in effect as of the date of the most recent audited
financial statements included in the Filed Company SEC Documents or (z) any
entry by the Company or any of its subsidiaries into any employment,
severance or termination agreement with any such Executive Officer of the
Company or (v) any change in accounting methods, principles or practices by
the Company or any Company Subsidiary materially affecting its assets,
Liabilities or business, except insofar as may have been required by a
change in generally accepted accounting principles.
(f) Absence of Changes in Benefit Plans. Except as disclosed in the
Filed Company SEC Documents or in Section 3.2(f) of the Company Disclosure
Schedule, since the date of the most recent audited financial statements
included in the Filed Company SEC Documents, there has not been any
adoption or amendment by the Company or any Company Subsidiary of any
collective bargaining agreement or any Company Benefit Plan (as defined
herein).
(g) Benefit Plans.
(i) Each Pension Plan, Welfare Plan, and each other plan,
arrangement or policy relating to compensation, deferred compensation,
severance, fringe benefits or other employee benefits, in each case
maintained or contributed to, or required to be maintained or
contributed to, by the Company or any of the Company Subsidiaries for
the benefit of any present or former officer, employee, agent,
director or independent contractor of the Company or any Company
Subsidiary (all the foregoing being herein called "Company Benefit
Plans") has been administered in accordance with its terms except
where failure to administer in accordance with such terms would not
reasonably be expected to have a Company Material Adverse Effect. The
Company, each of the Company Subsidiaries and all the Company Benefit
Plans are in compliance with the applicable provisions of ERISA, the
Code, all other applicable laws and all applicable collective
bargaining agreements except where failure to comply would not
reasonably be expected to have a Company Material Adverse Effect. A
complete and correct copy of each Company Benefit Plan, and the most
recent trust agreement, custodial agreement or insurance contract
relating thereto, have been made available to FNF. Section 3.2(g) of
the Company Disclosure Schedule sets forth a complete and correct list
of each employment contract as to which the Company has any obligation
or liability, contingent or otherwise.
(ii) None of the Company or any other person or entity that
together with the Company is treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code (each a "Company Commonly
Controlled Entity") has incurred any material liability under Title IV
of ERISA (other than for the payment of
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benefits or Pension Benefit Guaranty Corporation insurance premiums,
in either case in the ordinary course).
(iii) No Company Commonly Controlled Entity is obligated to
contribute to any "multiemployer plan" (as defined in Section
4001(a)(3) of ERISA) or has withdrawn from or incurred any contractual
liability to any multiemployer plan resulting or which would
reasonably be expected to result in any material "withdrawal
liability" (within the meaning of Section 4201 of ERISA) that has not
been fully paid.
(h) Taxes.
(i) Each of the Company and the Company Subsidiaries has filed
all tax returns and reports required to be filed by it or requests for
extensions to file such returns or reports have been timely filed,
granted and have not expired, except to the extent that such failures
to file or to have extensions granted that remain in effect
individually or in the aggregate would not have a Company Material
Adverse Effect. All tax returns filed by the Company and each Company
Subsidiary are complete and accurate except to the extent that such
failure to be complete and accurate would not have a Company Material
Adverse Effect. The Company and each Company Subsidiary has paid (or
the Company has paid on behalf of the Company Subsidiary) all taxes
shown as due on such returns, and the most recent financial statements
contained in the Filed Company SEC Documents reflect an adequate
reserve for all taxes payable by the Company and its subsidiaries for
all taxable periods and portions thereof accrued through the date of
such financial statements.
(ii) No deficiencies for any taxes have been proposed, asserted
or assessed against the Company or any of its subsidiaries that are
not adequately reserved for, except for deficiencies that individually
or in the aggregate would not have a Company Material Adverse Effect,
and, except as set forth in Section 3.2(h) of the Company Disclosure
Schedule, no requests for waivers of the time to assess any such taxes
have been granted or are pending. The Federal and state income tax
returns of the Company and each of its subsidiaries consolidated in
such returns have been examined by and settled with the IRS or the
appropriate state taxation authorities, as the case may be, or the
statute of limitations on assessment or collection of any Federal or
state income taxes due from the Company or any of its subsidiaries has
expired, for all taxable years of the Company or any of its
subsidiaries through the taxable year ended (a) December 31, 2001, for
Federal income taxes and (b) December 31, 1999, for state income
taxes.
(i) No Excess Parachute Payments; Section 162(m) of the Code.
(i) Except as disclosed in Section 3.2(i) of the Company
Disclosure Schedule, none of the transactions contemplated by this
Agreement shall constitute a triggering event under any employment,
severance or termination
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agreement or other compensation arrangement or Company Benefit Plan
currently in effect which (either alone or upon the occurrence of any
additional or subsequent event) would reasonably be expected to result
in any payment, acceleration, vesting or increase in benefits to any
current or former officer, employee or director of the Company or any
of its subsidiaries and which would constitute an "excess parachute
payment" (as such term is defined in Section 280G(b)(1) of the Code).
(ii) Except as disclosed in Section 3.2(i) of the Company
Disclosure Schedule, the disallowance of a deduction under Section
162(m) of the Code for employee remuneration will not apply to any
amount paid or payable by the Company or any Company Subsidiary under
any contract, Company Benefit Plan, program, arrangement or
understanding currently in effect.
(j) Voting Requirements. The affirmative vote of the shareholders of
the Company by the requisite vote in accordance with the requirements of
the New York Stock Exchange Listed Company Manual and any applicable law to
approve the issuance of the Company Common Stock in the Merger and the
Company Incentive Plan Amendment (as defined herein) is the only vote of
the holders of any class or series of Company Common Stock necessary to
approve issuance of the Company Common Stock in the Merger and this
Agreement and any of the transactions contemplated hereby, including the
Company Incentive Plan Amendment.
(k) Compliance with Applicable Laws. Except as set forth in Section
3.2(k) of the Company Disclosure Schedule, each of the Company and the
Company Subsidiaries has in full force and effect all Permits necessary for
it to own, lease or operate its properties and assets and to carry on its
business as now conducted, and there has occurred no default under any such
Permit, in each case except for the failure of Permits to be in full force
and effect or for defaults under Permits which failures or defaults
individually or in the aggregate would not reasonably be expected to have a
Company Material Adverse Effect. Except as disclosed in the Filed Company
SEC Documents, the Company and the Company Subsidiaries are in compliance
with all applicable statutes, laws, ordinances, rules, regulations and
orders of any Governmental Entity, except for such noncompliance which
individually or in the aggregate would not reasonably be expected to have a
Company Material Adverse Effect. Except as disclosed in the Filed Company
SEC Documents, as of the date of this Agreement, to the knowledge of the
Company, no investigation, examination, inquiry, enforcement action or
other proceeding by any Governmental Entity with respect to the Company or
any of its subsidiaries is pending or threatened, other than, in each case,
those the outcome of which, as far as reasonably can be foreseen, will not
have a Company Material Adverse Effect.
(l) Opinion of Financial Advisor. The Company has received the opinion
of its financial advisor, ▇▇▇▇▇▇▇▇, Inc., dated the date hereof, to the
effect that, as of such date, the Conversion Number is fair from a
financial point of view to the shareholders of the Company other than FNF.
It is agreed and understood that such opinion is for the benefit of the
Company's board of directors and may not be relied on by FNF.
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(m) Brokers. No broker, investment banker, financial advisor or other
person, other than ▇▇▇▇▇▇▇▇, Inc., the fees and expenses of which will be
paid by the Company, is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by
or on behalf of the Company.
(n) The Company Special Committee Recommendation; Board of Directors
Recommendation. The Company Special Committee has duly adopted at a special
meeting held on June 25, 2006, resolutions recommending to the Board of
Directors of the Company approval of this Agreement, the Merger, the
issuance of Company Common Stock in the Merger and the transactions
contemplated hereby on the terms and conditions set forth herein. Upon the
recommendation of the Company Special Committee, the Board of Directors of
the Company, by resolutions duly adopted at a meeting duly called and held,
has duly (i) determined that this Agreement, the Merger, the issuance of
Company Common Stock in the Merger and the other transactions contemplated
hereby are fair to and in the best interests of the Company and its
shareholders, (ii) adopted, approved and declared advisable this Agreement
and the Merger and the other transactions contemplated hereby and (iii)
recommended that the shareholders of the Company approve the issuance of
Company Common Stock in the Merger and the Company Incentive Plan Amendment
and directed that the issuance of Company Common Stock in the Merger and
the Company Incentive Plan Amendment be submitted for approval of the
Company's shareholders at the Company Shareholders Meeting (as defined
herein).
(o) Litigation. Except as set forth in Section 3.2(o) of the Company
Disclosure Schedule, there is no suit, action, proceeding or arbitration
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of the Company Subsidiaries that, individually
or in the aggregate, would reasonably be expected to (i) have a Company
Material Adverse Effect (other than as described in the Filed Company SEC
Documents) or (ii) prevent the consummation of any of the transactions
contemplated by this Agreement, nor is there any judgment, decree,
injunction or order of any Governmental Entity or arbitrator outstanding
against the Company or any of the Company Subsidiaries having, or which
would reasonably be expected to have, any such effect.
(p) Transaction Documents. None of the information contained in (i)
the Form S-4 will, at the time it becomes effective under the Securities
Act, at the time any amendment or supplement thereto becomes effective
under the Securities Act or at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or (ii) the Proxy Statement will, at the date the Proxy
Statement is first mailed to the Company's or FNF's stockholders or at the
time of the Company Shareholders Meeting or the FNF Stockholders Meeting,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not misleading. The S-4 and the Proxy Statement will comply as to
form in all material respects with the requirements of the Exchange Act and
the rules and regulations
-24-
promulgated thereunder. Notwithstanding the foregoing, no representation or
warranty is made by the Company in this Section 3.2(p) with respect to
information supplied by FNF specifically for inclusion or incorporation by
reference in the Form S-4 or the Proxy Statement.
(q) Fair Price Requirements; State Anti-Takeover Statutes. The Board
of Directors of the Company has taken all actions necessary so that the
Merger and other transactions contemplated by this Agreement have been
approved in accordance with Section 1111(1) of the GBCC, and no additional
shareholder vote pursuant to Section 1111(2) of the GBCC shall be required
in order to effectuate the Merger and the other transactions contemplated
by this Agreement. Neither Section 1132 of the GBCC nor, to the Company's
knowledge, any other "fair price" (other than Sections 1110-1113 of the
GBCC), "moratorium," "control share acquisition" or other state takeover
statute or similar statute or regulation is applicable to the Merger or any
other transaction contemplated by this Agreement.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
PRIOR TO MERGER
SECTION 4.1. Conduct of Business by the Company. (a) Except as
specifically contemplated by this Agreement, or as set forth on Section 4.1(a)
of the Disclosure Schedule or as required by applicable law, during the period
from the date of this Agreement to the Effective Time, the Company shall, and
shall cause the Company Subsidiaries to, carry on their respective businesses
only in the ordinary and usual course of business consistent with past practice
and, to the extent consistent therewith, use all reasonable efforts to preserve
intact their current business organizations, keep available the services of
their current officers and employees and preserve their relationships with
Government Entities, customers, suppliers, distributors, creditors, lessors and
other persons having business dealings with them to the end that their goodwill
and ongoing businesses shall be unimpaired at the Effective Time. Without
limiting the generality of the foregoing, during the period from the date of
this Agreement to the Effective Time, except as set forth on Section 4.1(b) of
the Disclosure Schedule or as otherwise expressly required by or provided for in
this Agreement, the Company shall not, and shall not permit any of the Company
Subsidiaries to, without the prior consent of FNF:
(i) (x) declare, set aside or pay any dividends on, or make any
other distributions (whether in cash, stock or property) in respect
of, any outstanding capital stock of the Company, other than ordinary
quarterly cash dividends, (y) split, combine or reclassify any of its
outstanding capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for
shares of its outstanding capital stock or (z) except as required by
the terms of any agreement, arrangement or plan in effect as of the
date hereof, purchase, redeem or otherwise acquire any shares of
outstanding capital stock or any rights, warrants or options to
acquire any such shares;
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(ii) issue, sell, grant, pledge or otherwise encumber any shares
of its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any
such shares, voting securities or convertible securities, other than
upon the exercise of options outstanding on the date of this Agreement
under the Company Stock Plans;
(iii) amend or propose any change to its certificate of
incorporation, by-laws or other comparable charter or organizational
documents;
(iv) (w) acquire, in any transaction or a series of related
transactions, (1) any business or any corporation, partnership, joint
venture, association or other business organization or division
thereof other than the acquisition of the shares of National Title
Insurance of New York, Inc. or (2) any assets that are material,
individually or in the aggregate, to the Company and the Company
Subsidiaries taken as a whole, (x) merge or consolidate itself or any
of its Subsidiaries with any other Person, except for any such
transactions among its wholly owned Subsidiaries, (y) restructure,
reorganize or completely or partially liquidate or (z) otherwise enter
into any agreements or arrangements imposing material changes or
restrictions on its assets, operations or businesses, when taken as a
whole;
(v) sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its properties or
assets that are material to the Company and its Subsidiaries taken as
a whole, except in the ordinary course of business consistent with
past practice;
(vi) (x) incur any indebtedness for borrowed money or guarantee
or otherwise become responsible for any such indebtedness of another
person, other than indebtedness in an amount less than $2,000,000
individually or $10,000,000 in the aggregate or indebtedness owing to
or guarantees owing to the Company or any direct or indirect
wholly-owned Company Subsidiary (it being understood that the
Company's guarantee of the performance of a Company Subsidiary to a
third party customer or vendor shall not constitute an incurrence of
indebtedness under this subsection), or (y) make any loans, advances
or capital contributions to, or investments in, any other person,
other than to the Company or to any direct or indirect wholly-owned
Company Subsidiary and routine, immaterial advances to employees, and
other than purchases of investment assets in the ordinary course of
business consistent with past practice;
(vii) except in accordance with the Company's budget which exists
as of the date hereof, make or agree to make any new capital
expenditure or expenditures which, individually, involves payments of
in excess of $10,000,000 or, in the aggregate, involve payments of in
excess of $25,000,000;
(viii) pay, discharge, settle or satisfy any claims, liabilities
or obligations (absolute, accrued, asserted or unasserted, contingent
or otherwise), other than the payment, discharge or satisfaction, in
the ordinary course of business consistent
-26-
with past practice or in accordance with their terms, of liabilities
reflected or reserved against in, or contemplated by, the most recent
consolidated financial statements (or the notes thereto) of the
Company included in the Filed Company SEC Documents or incurred since
the date of such financial statements in the ordinary course of
business consistent with past practice, or in amounts not in excess of
$2,000,000 in each case;
(ix) make any change in accounting methods, principles or
practices used by the Company or any of the Company Subsidiaries
materially affecting its assets, liabilities or business, except
insofar as may be required by a change in generally accepted
accounting principles;
(x) other than in the ordinary course of business consistent with
past practice, cancel, modify or waive any material debts or claims
held by it or waive any material rights under any material contract to
which the Company of any of its Subsidiaries is a party;
(xi) except as required pursuant to existing written, binding
agreements or policies in effect prior to the date of this Agreement,
or as otherwise required by applicable law, (w) grant or provide any
material severance or termination payments or benefits to any
director, officer or employee of the Company, except, in the case of
employees who are not officers, in the ordinary course of business
consistent with past practice, (x) materially increase the
compensation, bonus or pension, welfare, severance or other benefits
of, pay any material bonus to, or make any new equity awards to any
director, officer or employee of the Company, except for increases in
the ordinary course of business consistent with past practice for
employees who are not officers, (y) establish, adopt, materially amend
or terminate any Company Benefit Plan or amend the terms of any
outstanding equity-based awards, or (z) take any action to accelerate
the vesting or payment, or fund or in any other way secure the
payment, of compensation or benefits under any Company Benefit Plan,
to the extent not already provided in any such Company Benefit Plan;
or
(xii) authorize any of, or commit or agree to take any of, the
foregoing actions.
(b) Conduct of Business of FNF. FNF shall not take any action that
would cause it to own any assets at the Effective Time other than the
Assumption Agreement, the Tax Disaffiliation Agreement and shares of
Company Common Stock or to have any Liabilities at the Effective Time
(other than Excluded FNF Liabilities) that have not been assumed by FNT.
SECTION 4.2. Other Actions. The Company, each Company Subsidiary and
FNF shall not take any action that would, or that would reasonably be expected
to, result in any of the conditions set forth in Article VI not being satisfied.
The Company shall give prompt notice to FNF, and FNF shall give prompt notice to
the Company, of any event, condition or circumstance of which it becomes aware
that would constitute a violation or breach of this
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Agreement by it; provided, however, that no such notification shall affect the
representations, warranties, covenants or agreements of the parties or the
conditions to the obligations of the parties under this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Preparation of Form S-4 and the Proxy Statement. As soon
as practicable following the date of this Agreement, the Company and FNF shall
prepare and file with the SEC the Form S-4, in which the Proxy Statement will be
included as a prospectus. Each of the Company and FNF shall use its reasonable
best efforts to have the Proxy Statement cleared by the SEC under the Exchange
Act and have the Form S-4 declared effective under the Securities Act as
promptly as practicable after such filing. The Company shall use its reasonable
best efforts to cause the Proxy Statement to be mailed to the Company's
shareholders and FNF shall use its reasonable best efforts to cause the Proxy
Statement to be mailed to FNF's stockholders, in each case as promptly as
practicable after the Form S-4 is declared effective. The Company shall also
take, in consultation with FNF and its counsel, any action (other than
qualifying to do business in any jurisdiction in which it is not now so
qualified) required to be taken under any applicable state securities laws in
connection with the issuance of Company Common Stock in the Merger and FNF shall
furnish all information concerning FNF and the holders of the FNF Common Stock
as may be reasonably requested in connection with any such action. No filing of,
or amendment or supplement to, the Form S-4 or the Proxy Statement will be made
by the Company or FNF without providing the other party the opportunity to
review and comment thereon. Each party shall promptly notify the other party
upon the receipt of any comments from the SEC or its staff or any request from
the SEC or its staff for amendments or supplements to the Form S-4 or Proxy
Statement and shall provide the other party with copies of all correspondence
between it and its representatives, on the one hand, and the SEC and its staff,
on the other hand, relating to the Form S-4 and the Proxy Statement. The Company
shall advise FNF, promptly after it receives notice thereof, of the time when
the Form S-4 becomes effective or any supplement or amendment has been filed,
the issuance of any stop order, the suspension of the qualification of Company
Common Stock issuable in connection with the Merger for offering or sale in any
jurisdiction. If at any time prior to the Company Shareholders Meeting or the
FNF Stockholders Meeting, any information relating to the Company or FNF or any
of their respective affiliates, officers or directors, should be discovered by
the Company or FNF which is required by applicable law to be set forth in an
amendment or supplement to the Form S-4 or the Proxy Statement, so that the Form
S-4 or Proxy Statement shall not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading, the party which discovers such information shall
promptly notify the other parties, and an appropriate amendment or supplement
describing such information shall be filed with the SEC and, to the extent
required by applicable law, disseminated to the shareholders of the Company and
the stockholders of FNF. The Company shall not mail or use the Proxy Statement
or any amendment or supplement thereto without the prior approval of FNF of the
form and content thereof, which approval of the content thereof, which approval
will not be unreasonably withheld or delayed.
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SECTION 5.2. Treatment of Company Stock Options. In connection with
the Merger, the Company shall take all actions necessary so that each
outstanding option to purchase shares of Company Common Stock held by an
employee or director who, following the Merger, shall be employed solely by or
solely serve as a director of FNT or any subsidiary thereof, shall be fully
vested as of the Effective Time.
SECTION 5.3. Meetings of Stockholders. FNF shall take all action
necessary in accordance with applicable law and the FNF Charter and FNF By-laws
to convene a meeting of its stockholders (the "FNF Stockholders Meeting") to
consider and vote upon the adoption of this Agreement and to cause such vote to
be taken. The Company shall take all action necessary in accordance with
applicable law and the Company Charter and Company By-laws to convene a meeting
of its shareholders (the "Company Shareholders Meeting") to consider and vote
upon the approval of the issuance of Company Common Stock in the Merger and the
Company Incentive Plan Amendment (collectively, the "Company Vote Items") and to
cause such vote to be taken. Subject to Section 5.8 hereof, FNF and the Company
shall, through their respective Boards of Directors, recommend to their
respective stockholders adoption or approval, as the case may be, of the
foregoing matters and FNF shall take all lawful action to solicit such adoption
or approval, as the case may be, by its stockholders. Without limiting the
generality of the foregoing, (x) FNF agrees that its obligations pursuant to the
first and last sentences of this Section 5.3 shall not be affected by the
withdrawal or modification by the Board of Directors of FNF of its approval or
recommendation of this Agreement or the Merger and (y) the Company agrees that
its obligations pursuant to the second and last sentences of this Section 5.3
shall not be affected by the withdrawal or modification by the Board of
Directors of the Company of its approval or recommendation of any of the Company
Vote Items. FNF and the Company shall use reasonable efforts to hold the FNF
Stockholders Meeting and the Company Shareholders Meeting on the same day as the
meeting of stockholders of FNT to be held to approve the Securities Exchange
Agreement and use their reasonable best efforts to hold such meetings as soon as
practicable after the Form S-4 is declared effective.
SECTION 5.4. Access to Information; Confidentiality. Each of FNF and
the Company shall, and shall cause any of its respective subsidiaries to, afford
to the other party and to the officers, employees, counsel, financial advisors,
accountants, actuaries and other representatives of such other party reasonable
access during normal business hours during the period prior to the Effective
Time to all its properties, books, contracts, commitments, personnel and records
and, during such period, each of FNF and the Company shall, and shall cause each
of its respective subsidiaries to, furnish as promptly as practicable to the
other party such information concerning its business, properties, financial
condition, operations and personnel as such other party may from time to time
reasonably request.
SECTION 5.5. Reasonable Best Efforts. Upon the terms and subject to
the conditions and other agreements set forth in this Agreement, each of the
parties agrees to use its reasonable best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, and to assist and cooperate with
the other party in doing, all things necessary, proper or advisable to
consummate and make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by this Agreement.
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SECTION 5.6. Public Announcements. The Company, on the one hand, and
FNF, on the other hand, shall consult with each other before issuing, and
provide each other the opportunity to review and comment upon, any press release
or other public statements with respect to the transactions contemplated by this
Agreement, including the Merger, and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by applicable law, court process or by obligations pursuant to any
listing agreement with any national securities exchange (in which case the party
subject to such obligations shall advise the other party of such requirement).
SECTION 5.7. Acquisition Proposals. The Company shall not, nor shall
it permit any of its subsidiaries to, nor shall it authorize or permit any
officer, director or employee of, or any investment banker, attorney or other
advisor, representative or agent of, the Company or any Company Subsidiary to,
directly or indirectly, (i) solicit, initiate or encourage the submission of any
Company Acquisition Proposal (as defined below), or take any other action to
knowingly facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Company Acquisition
Proposal or (ii) participate in or continue any discussions or negotiations
regarding, or furnish to any person any non-public information with respect to,
any Company Acquisition Proposal. Notwithstanding the foregoing, prior to the
time, but not after, the requisite vote of the Company Stockholders is obtained,
if the Board of Directors of the Company determines in good faith, following
consultation with outside counsel, that such action is required in order for
such directors to comply with their fiduciary duties under applicable law, the
Company, any Company Subsidiary or any officer, director or employee of, or any
investment banker, attorney or other advisor, representative or agent of, the
Company or any Company Subsidiary may, following the receipt of an unsolicited
Company Acquisition Proposal by the Company, participate in negotiations
regarding such Company Acquisition Proposal or furnish information regarding the
Company and its business pursuant to an appropriate confidentiality agreement to
the person making such Company Acquisition Proposal. Notwithstanding anything in
this Agreement to the contrary, the Company shall promptly advise FNF orally and
in writing of the receipt by it (or any of the other entities or persons
referred to above) after the date hereof of any Company Acquisition Proposal, or
any inquiry which could lead to any Company Acquisition Proposal, the material
terms and conditions of such Company Acquisition Proposal or inquiry, and the
identity of the person making any such Company Acquisition Proposal or inquiry.
The Company shall keep FNF fully informed of the status and details of any such
Company Acquisition Proposal or inquiry. For purposes of this Agreement,
"Company Acquisition Proposal" means any proposal or offer for a merger,
consolidation or other business combination involving the Company or any Company
Subsidiary or any proposal or offer to acquire or cause to be acquired in any
manner, directly or indirectly, all or substantially all of the business, assets
or capital stock of the Company, other than the transactions contemplated by
this Agreement.
SECTION 5.8. Fiduciary Duties.
(a) Notwithstanding anything herein to the contrary, (i) prior to the
Company Shareholder Approval, but not after, the Board of Directors of the
Company may withdraw or modify its recommendation, or propose to do so,
with respect to the Merger in a manner adverse to FNF if the Board of
Directors of the Company concludes in good faith, after consultation with
its independent financial advisor and outside legal counsel,
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that the withdrawal or modification of such recommendation is required in
order for the Board of Directors of the Company to comply with its
fiduciary duties under applicable law (it being understood that publicly
taking a neutral position or no position with respect to a Company
Acquisition Proposal at any time beyond ten business days after the first
public announcement of such a proposal shall be considered an adverse
modification) and (ii) prior to the FNF Stockholder Approval, but not
after, the Board of Directors of FNF may withdraw or modify its
recommendation, or propose to do so, with respect to the Merger in a manner
adverse to the Company if the Board of Directors of FNF concludes in good
faith, after consultation with its independent financial advisor and
outside legal counsel, that the withdrawal or modification of such
recommendation is required in order for the Board of Directors of FNF to
comply with its fiduciary duties under applicable law. No change of
recommendation may be made by the Company until at least 48 hours following
FNF's receipt of notice from the Company that the Board of Directors of the
Company intends to change its recommendation and the basis therefor,
including all necessary information under Section 5.7. In determining
whether to make a change of recommendation in response to a Company
Acquisition Proposal or otherwise, the Company Board of Directors shall
take into account any changes to the terms of this Agreement proposed by
FNF and any other information provided by FNF in response to such notice.
Any material amendment to any Company Acquisition Proposal will be deemed
to be a new Company Acquisition Proposal for purposes of this Section
5.8(a), including with respect to the notice period referred to in this
Section 5.8(a).
(b) Nothing contained in this Agreement shall prohibit FNF from taking
and disclosing to its stockholders a position contemplated by Rule 14e-2(a)
promulgated under the Exchange Act or from making any disclosure to FNF's
stockholders which, in the good faith reasonable judgment of the Board of
Directors of FNF based on the advice of counsel, is required under
applicable law; provided that FNF does not withdraw or modify, or propose
to withdraw or modify, its position with respect to this Agreement or the
Merger other than as set forth in Section 5.8(a). Notwithstanding anything
contained in this Agreement to the contrary, any action by the Board of
Directors of FNF permitted by this Section 5.8 shall not constitute a
breach of this Agreement by FNF.
(c) Nothing contained in this Agreement shall prohibit the Company
from taking and disclosing to its shareholders a position contemplated by
Rule 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to the Company's shareholders which, in the good faith
reasonable judgment of the Board of Directors of the Company based on the
advice of counsel, is required under applicable law; provided that the
Company does not withdraw or modify, or propose to withdraw or modify, its
position with respect to any of the Company Vote Items other than as set
forth in Section 5.8(a). Notwithstanding anything contained in this
Agreement to the contrary, any action by the Board of Directors of the
Company permitted by this Section 5.8 shall not constitute a breach of this
Agreement by the Company.
SECTION 5.9. Consents, Approvals and Filings. (i) FNF and the Company
shall make and cause their respective subsidiaries to make all necessary
filings, as soon as practicable, including those required under the HSR Act, the
Securities Act, the Exchange Act, state securities laws and state insurance laws
in order to facilitate prompt consummation of the
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Merger and the other transactions contemplated by this Agreement. In addition,
FNF and the Company shall each use their reasonable best efforts, and shall
cooperate fully with each other (i) to comply as promptly as practicable with
all governmental requirements applicable to the Merger and the other
transactions contemplated by this Agreement and (ii) to obtain as promptly as
practicable all necessary permits, orders or other consents, approvals or
authorizations of Governmental Entities and consents or waivers of all third
parties necessary or advisable for the consummation of the Merger and the other
transactions contemplated by this Agreement. Each of FNF and the Company shall
use its reasonable best efforts to provide such information and communications
to Governmental Entities as such Governmental Entities may reasonably request.
(ii) Each of the parties shall provide to the other party copies of
all applications in advance of filing or submission of such applications to
Governmental Entities in connection with this Agreement.
(iii) Subject to applicable law and the instructions of any
Governmental Entity, FNF and the Company each shall keep the other apprised of
the status of matters relating to completion of the transactions contemplated
hereby, including promptly furnishing the other with copies of notices or other
communications received by FNF or the Company, as the case may be, or any of
their respective subsidiaries, from any third party or any Governmental Entity
with respect to such transactions. Without limiting the generality of the
foregoing, FNF shall keep the Company informed to the fullest extent practicable
of all developments concerning the IRS private letter ruling referred to in
Section 6.2(c) and 6.3(c) and shall provide the Company with reasonable
opportunity to review and comment on all submissions to the IRS in connection
therewith prior to such submission (except to the extent that providing such
opportunity is not reasonably practicable, in which case FNF shall provide the
Company with a copy of such submission as soon as practicable following such
submission). The Company shall give prompt notice to FNF of any change, fact or
condition that is reasonably likely to result in a Company Material Adverse
Effect or of any failure of any condition to FNF's obligations to effect the
Merger, and FNF shall give prompt notice to the Company of any change, fact or
condition that is reasonably likely to result in a FNF Material Adverse Effect
or of any failure of any condition to the Company's obligations to effect the
Merger.
SECTION 5.10. Spin-Off. FNF and the Company shall not, and shall cause
their respective subsidiaries not to, take or cause to be taken any action that
would be likely to disqualify the Spin-off as a tax-free spin-off within the
meaning of Section 355 of the Code.
SECTION 5.11. Affiliates and Certain Stockholders. Prior to the
Closing Date, FNF shall deliver to the Company a letter identifying all persons
who are, at the time the Merger is submitted for adoption by the stockholders of
FNF, "affiliates" of FNF for purposes of Rule 145 under the Securities Act. FNF
shall use its reasonable best efforts to cause each such person to deliver to
the Company on or prior to the Closing Date a written agreement substantially in
the form attached as Exhibit C hereto. The Company shall not be required to
maintain the effectiveness of the Form S-4 for the purposes of resale of Company
Common Stock by such affiliates and the certificates representing Company Common
Stock received by such affiliates in the Merger shall bear a customary legend
regarding applicable Securities Act restrictions and the provisions of this
Section 5.11.
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SECTION 5.12. NYSE Listing. The Company shall use its reasonable best
efforts to cause the Company Common Stock to continue to be listed on the NYSE
through the Effective Time and to cause the shares of Company Common Stock to be
issued in the Merger and the other transactions contemplated by this Agreement
to be approved for listing on the NYSE, subject to official notice of issuance,
as promptly as practicable after the date hereof and in any event prior to the
Effective Time.
SECTION 5.13. Stockholder Litigation. The Company shall give FNF, and
FNF shall give the Company, the opportunity to participate in the defense or
settlement of any stockholder litigation against the Company or FNF, as
applicable, and its directors relating to the transactions contemplated by this
Agreement; provided, however, that no such settlement shall be agreed to without
the consent of the other party, which consent shall not be unreasonably
withheld.
SECTION 5.14. Action Relating to Stock Option Plans. As soon as
practicable following the date of this Agreement, the Boards of Directors of FNF
and the Company (or, any authorized committees thereof) shall adopt such
resolutions or take such actions, if any, as may be required to adjust the terms
of all outstanding FNF Stock Options in accordance with Section 2.2, all FNF
restricted stock in accordance with Section 2.1(d) and all options to purchase
Company Common Stock in accordance with Section 5.2 and shall make such other
changes to the FNF Stock Option Plans as it deems appropriate to give effect to
the Merger and the terms hereof.
SECTION 5.15. Section 16 Matters. Each of FNF and the Company and
their respective boards of directors (and any subcommittees thereof) shall adopt
such resolutions as are necessary for purposes of Rule 16b-3 under the Exchange
Act to specifically approve (i) the disposition in the Merger of shares of FNF
Common Stock and "derivative securities" (as defined in Rule 16a-1(c) under the
Exchange Act) relating thereto, and (ii) the acquisition in the Merger of
Company Common Stock and derivative securities relating thereto, in each case by
each officer or director of FNF or the Company who is subject to the reporting
requirements of Section 16(a) of the Exchange Act with respect to FNF or the
Company, as the case may be.
SECTION 5.16. Related Party Agreements. At or prior to the Closing:
(i) The Company and FNF shall, and the Company shall cause each
Company Subsidiary that is party to any of the agreements listed on
Section 5.16 of the Disclosure Schedule (the "Related Party
Agreements") to, enter into the amendments or terminations to the
Related Party Agreements described in Section 5.16 of the Disclosure
Schedule, which amendments or terminations shall be effective at or
prior to the Closing.
(ii) The Company shall, and FNF shall cause FNT to, enter into a
cross-indemnity agreement as of the time of the Spin-off in the form
attached hereto as Exhibit D (the "Cross-Indemnity Agreement").
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(iii) The Company and FNF shall, and FNF shall cause FNT to,
enter into a tax disaffiliation agreement as of the time of the
Spin-off in the form attached hereto as Exhibit E (the "Tax
Disaffiliation Agreement").
SECTION 5.17. Company Common Stock Buy-Backs. If, after giving effect
to actual or anticipated or projected exercises of outstanding options to
purchase shares of Company Common Stock after the date hereof and prior to the
Effective Time, the Merger Consideration would not constitute more than 50% of
the shares of Company Common Stock outstanding immediately after the Effective
Time, the Company shall, if and to the extent directed by FNF, repurchase such
number of shares of Company Common Stock as shall be reasonably adequate to
cause the Merger Consideration to constitute more than 50% of the shares of
Company Common Stock outstanding immediately after the Effective Time; provided
that the Company shall not be required to effect any such repurchase if such
repurchase would constitute or result in a violation of applicable law,
including Regulation M under the Exchange Act.
SECTION 5.18. Taxation. Neither FNF nor the Company shall take or
cause to be taken any action, whether before or after the Effective Time, that
would be likely to disqualify the Merger as a "reorganization" within the
meaning of Section 368(a) of the Code.
SECTION 5.19. Takeover Statutes. If any "fair price," "moratorium,"
"control share acquisition" or other state takeover statute or similar statute
or regulation is or may become applicable to the Merger or the other
transactions contemplated by this Agreement, each of FNF and the Company and its
respective board of directors shall grant such approvals and take such actions
as are necessary so that such transactions may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise act to
eliminate or minimize the effects of such statute or regulation on such
transactions.
SECTION 5.20. Employee Benefits. The Company agrees to (i) provide
coverage for FNF employees who become employees of the Company under its
medical, dental and health plans as of the Effective Time, (ii) waive any
preexisting conditions, waiting periods and actively at work requirements under
such plans, and (iii) cause such plans to honor any expenses incurred by the
employees and their beneficiaries under similar plans of FNF during the portion
of the calendar year in which the Effective Time occurs for purposes of
satisfying applicable deductible, co-insurance and maximum out-of-pocket
expenses. The Company will cause any Company Benefit Plans (and any other
employee benefit plans established by the Company after the date hereof) in
which the employees of FNF are eligible to participate after the Effective Time
to take into account for purposes of eligibility, vesting and benefit accrual
thereunder (but, in respect of benefit accrual, only to the extent it would not
result in a duplication of benefits for the same period of service), service
with FNF and its Subsidiaries as if such service were with the Company, to the
same extent such service was credited under a comparable plan of FNF prior to
the Effective Time. With respect to all Benefit Plans that are sponsored by FNF
and constitute employee benefit plans within the meaning of Section 3(3) of
ERISA, including the Fidelity National Financial Group 401(k) Profit Sharing
Plan, FNF shall, to the extent any such plan is not terminated (and all assets
distributed and all liabilities satisfied) prior to the Effective Time, cause
the sponsorship of such plans to be transferred to FNT prior to the Effective
Time, together with all insurance policies, bonds, and trust, services and other
agreements relating to such plans; provided, however, that FNT and FIS shall be
entitled to the
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rights and benefits under such insurance policies, bonds, trusts to the extent
reasonably attributable to their respective businesses prior to the Effective
Time, as mutually agreed by such companies.
SECTION 5.21. Certegy Stock Incentive Plan Amendment. Prior to the
Effective Time, the Company shall (i) amend and restate the Certegy Inc. Stock
Incentive Plan (as amended and restated through the date thereof) to increase
the total number of shares available under such plan by an additional 4,000,000
shares (the "Company Incentive Plan Amendment"), and (ii) submit such amended
and restated plan to the Company's shareholders for approval at the Company
Shareholders Meeting. The Company shall use its reasonable best efforts to
obtain any required consent or waiver of each holder of outstanding, unvested
options issued under the Company Incentive Plan so that the transactions
contemplated hereby shall not constitute a "change of control" within the
meaning of the Company Incentive Plan with respect to such holder.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger is subject
to the satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Stockholder Approval. This Agreement shall have been adopted by
the requisite vote of the stockholders of FNF in accordance with applicable
law and the FNF Charter and FNF By-laws and the approval of the issuance of
Company Common Stock in the Merger shall have been approved by the
requisite vote of the shareholders of the Company in accordance with the
rules of the NYSE.
(b) Governmental and Regulatory Consents. All filings required to be
made prior to the Effective Time with, and all consents, approvals, permits
and authorizations required to be obtained prior to the Effective Time
from, Governmental Entities, including those set forth in Sections 3.1(c)
of the FNF Disclosure Schedule and 3.2(c) of the Company Disclosure
Schedule, in connection with the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by FNF and the
Company shall have been made or obtained (as the case may be), and such
consents, approvals, permits and authorizations shall be subject to no
conditions other than conditions that would not reasonably be expected to
have a Company Material Adverse Effect.
(c) HSR Act. Any waiting period (and any extension thereof) applicable
to the Merger under the HSR Act shall have been terminated or shall have
otherwise expired.
(d) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any
Governmental Entity of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Merger or any of the other
transactions contemplated hereby shall be in effect and no
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Governmental Entity of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any law deemed applicable to the Merger or
any of the other transactions contemplated hereby individually or in the
aggregate resulting in, or that is reasonably likely to result in, any of
the foregoing; provided, however, that the party invoking this condition
shall have used reasonable efforts to have any such order or injunction
vacated.
(e) Form S-4. The Form S-4 shall have become effective under the
Securities Act and shall not be the subject of any stop order and no
proceedings for that purpose shall have been initiated or threatened by the
SEC.
(f) NYSE Listing. The shares of Company Common Stock issuable to FNF
stockholders pursuant to this Agreement shall have been authorized for
listing on the NYSE upon official notice of issuance.
(g) Third-Party Consents. All consents and waivers of third parties to
the consummation of the Merger and the other transactions contemplated
hereby shall have been obtained, other than those which, if not obtained,
individually or in the aggregate, would not reasonably be expected to have
a Company Material Adverse Effect.
(h) Spin-Off. The Spin-off shall have occurred in accordance with the
terms of the Spin-off Agreements.
(i) Related Party Agreements. The amendments or terminations of the
Related Party Agreements set forth in Section 5.16 of the Disclosure
Schedule shall have been entered into by the parties thereto.
SECTION 6.2. Conditions to Obligations of Company. The obligations of
the Company to effect the Merger are further subject to the following
conditions:
(a) Representations and Warranties. The representations and warranties
of FNF set forth in Section 3.1(p) shall be true and correct. The other
representations and warranties of FNF set forth in this Agreement shall be
true and correct as of the date of this Agreement (except to the extent
such representations and warranties speak as of an earlier date) and as of
the Closing Date as though made on and as of the Closing Date, subject to
such exceptions as do not have and would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect
after giving effect to the Merger. The Company shall have received a
certificate dated as of the Closing Date and signed on behalf of FNF by an
executive officer of FNF to the effect set forth in this Section 6.2(a).
(b) Performance of Obligations of FNF. FNF shall have performed in all
material respects all obligations required to be performed by it under this
Agreement at or prior to the Closing Date, and the Company shall have
received a certificate signed on behalf of FNF by an executive officer of
FNF to such effect.
(c) Tax Matters.
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(i) The Company shall have received an opinion of its special tax
advisor, Weil, Gotshal & ▇▇▇▇▇▇ LLP, in substance and form
satisfactory to the Company, dated the Closing Date, or FNF shall have
received a private letter ruling, in substance and form satisfactory
to the Company, to the effect that the Merger will be treated for
federal income tax purposes as a reorganization within the meaning of
Section 368(a) of the Code, and that each of FNF and the Company will
be a party to the reorganization within the meaning of Section 368(b)
of the Code. In rendering any such opinion, such counsel shall be
entitled to rely upon customary assumptions and certificates of
officers of FNF and the Company delivered to such counsel in
connection with such opinion substantially in the form of Exhibits F
and G hereto.
(ii) FNF shall have received (i) an opinion of its special tax
advisor, Deloitte Tax LLP, in substance and form reasonably
satisfactory to the Company, dated the Closing Date, to the effect
that, for U.S. federal income tax purposes, the Asset Contribution (as
defined in the Securities Exchange Agreement) will qualify as a
reorganization within the meaning of Section 368(a) of the Code
(taking into account the Spin-off), and the Spin-off will qualify as a
tax-free transaction under Section 355 and related provisions of the
Code (including Section 361(c)(1)) for both FNF and its stockholders,
and (ii) from the IRS a private letter ruling, in substance and form
reasonably satisfactory to the Company, that specifically includes
rulings 1, 6, 15, 24 and 25 as requested in Section VI of the request
letter from Deloitte Tax LLP to the IRS dated June 2, 2006, or rulings
substantially to that effect, and such rulings shall be in full force
and effect.
(d) Other Agreements. FNT shall have executed and delivered the
Cross-Indemnity Agreement and FNT and FNF shall have executed and delivered
the Tax Disaffiliation Agreement.
SECTION 6.3. Conditions to Obligation of FNF. The obligation of FNF to
effect the Merger is further subject to the following conditions:
(a) Representations and Warranties. The representations and warranties
of the Company set forth in this Agreement shall be true and correct
(without regard to any qualifications or references to Company Material
Adverse Effect or "material" or any other materiality qualifications or
references contained in any specific representation or warranty), in each
case as of the date of this Agreement and as of the Closing Date as though
made on and as of the Closing Date, except (i) to the extent any such
representation and warranty speaks as of an earlier date, in which event
such representation and warranty shall be true and correct as of such date,
and (ii) where any failure of the representations or warranties in the
aggregate to be true and correct would not reasonably be expected to have a
Company Material Adverse Effect, and FNF shall have received a certificate
dated as of the Closing Date and signed on behalf of the Company by an
executive officer of the Company to such effect.
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(b) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date, and FNF shall
have received a certificate signed on behalf of the Company by an executive
officer of the Company to such effect.
(c) Tax Matters. FNF shall have received an opinion of its special tax
advisor, Deloitte Tax LLP, in substance and form satisfactory to FNF, dated
the Closing Date, or FNF shall have received a private letter ruling, in
substance and form satisfactory to FNF, to the effect that the Merger will
be treated for federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Code, and that each of FNF and the Company
will be a party to the reorganization within the meaning of Section 368(b)
of the Code. In rendering any such opinion, such tax advisor shall be
entitled to rely upon customary assumptions and certificates of officers of
FNF and the Company delivered to such counsel in connection with such
opinion substantially in the form of Exhibits F and G hereto.
(d) Other Agreements. The Company and FNT shall have executed and
delivered the Cross-Indemnity Agreement and the Tax Disaffiliation
Agreement.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1. Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether before
or after approval of matters presented in connection with the Merger by the
stockholders of the Company and FNF:
(a) by mutual written consent of the Company and FNF, as authorized by
action of the Company Special Committee and the FNF Special Committee,
respectively;
(b) by either the Company or FNF:
(i) if, upon a vote at a duly held Company Shareholders Meeting
or FNF Stockholders Meeting or any adjournment or postponement
thereof, any required approval of the stockholders of the Company or
FNF, as the case may be, shall not have been obtained;
(ii) if the Securities Exchange Agreement shall have been
terminated;
(iii) if the Merger shall not have been consummated on or before
December 31, 2006 (the "Termination Date"); or
(iv) if any Governmental Entity shall have issued an order,
decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and
nonappealable;
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(c) by the Company:
(i) if the FNF Special Committee shall have withdrawn, qualified
or modified in any material respect its approval of this Agreement or
its recommendation to the FNF stockholders in a manner adverse to the
Company; or
(ii) if there has been a breach of any representation, warranty,
covenant or agreement made by FNF in this Agreement, or any such
representation and warranty shall have become untrue or incorrect
after the execution of this Agreement, such that Section 6.2(a) or
6.2(b) would not be satisfied and such breach or failure to be true or
correct is not curable by the Termination Date; or
(d) by FNF:
(i) if the Company Special Committee shall have withdrawn,
qualified or modified in any material respect its approval of this
Agreement or its recommendation to the Company shareholders in a
manner adverse to FNF; or
(ii) if there has been a breach of any representation, warranty,
covenant or agreement made by the Company in this Agreement, or any
such representation and warranty shall have become untrue or incorrect
after the execution of this Agreement, such that Section 6.3(a) or
6.3(b) would not be satisfied and such breach or failure to be true or
correct is not curable by the Termination Date.
The right to terminate this Agreement pursuant to Section 7.1(b)(iii) shall not
be available to any party that has breached in any material respect its
obligations under this Agreement in any manner that shall have proximately
contributed to the occurrence of the failure of a condition to the consummation
of the Merger.
SECTION 7.2. Effect of Termination. In the event of termination of
this Agreement and the abandonment of the Merger by either the Company or FNF as
provided in Section 7.1, this Agreement shall forthwith become void and have no
effect, without any liability or obligation on the part of FNF or the Company,
other than as set forth in this Section 7.2 and Article VIII, which shall
survive such termination. Nothing contained in this section shall relieve any
party from any liability or damages resulting from any willful and material
breach of any of its representations, warranties, covenants or agreements set
forth in this Agreement.
SECTION 7.3. Amendment. Subject to applicable law, at any time prior
to the Effective Time, the parties hereto may amend, modify or supplement this
Agreement; provided, however, that after approval of the Merger by the
stockholders of a party, no amendment shall be made that by law requires the
approval of such stockholders without the approval of such stockholders. This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties, as authorized by action of the board of directors of the
respective parties following approval of the FNF Special Committee or Company
Special Committee, as applicable.
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SECTION 7.4. Consent; Extension; Waiver. At any time prior to the
Effective Time, each party may (a) extend the time for the performance of any of
the obligations or other acts of the other party, (b) waive any inaccuracies in
the representations and warranties of the other party contained in this
Agreement or in any document delivered pursuant to this Agreement or (c) subject
to Section 7.3, waive compliance with any of the agreements of the other party
contained in this Agreement. The conditions to each of the parties' obligations
to consummate the Merger are for the sole benefit of such party and may be
waived by such party in whole or in part to the extent permitted by applicable
law. Any agreement on the part of a party to any such extension or waiver shall
be valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
Notwithstanding anything in this Agreement to the contrary, any right of FNF or
the Company to waive conditions or extend time periods under this Agreement
shall be valid only if authorized in writing by the FNF Special Committee or the
Company Special Committee, as applicable.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. Nonsurvival of Representations and Warranties. None of
the representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective Time. This
Section 8.1 shall not limit any covenant or agreement of the parties which by
its terms contemplates performance after the Effective Time.
SECTION 8.2. Fees, Expenses and Transfer Taxes. Whether or not the
Merger shall be consummated, each party hereto shall pay its own fees and
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby, except
that expenses incurred in connection with the filing fee for the Form S-4 and
printing and mailing the Proxy Statement and the Form S-4 shall be shared
equally by the Company and FNF and satisfied prior to the Effective Time. All
transfer, documentary, sales, use, stamp, registration and other such taxes and
fees (including penalties and interest) incurred in connection with the Merger
shall be paid by the Company when due.
SECTION 8.3. Definitions. For purposes of this Agreement:
(i) an "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls,
is controlled by, or is under common control with, such first person;
(ii) "Excluded FNF Liabilities" means (i) all Liabilities of FNF
to the extent the Company or any Company Subsidiary has, as of or
prior to the Closing, agreed in writing to be responsible therefor,
(ii) all Liabilities to the extent arising out of or related to the
ownership or operation of the assets or properties, and the operations
or conduct of the business, of the Company or any Company Subsidiary,
to the extent the Company or any Company Subsidiary has, as of or
prior to the Closing, agreed to be responsible therefor and (iii) all
guaranties or other similar contractual Liabilities of FNF in respect
of a primary liability or
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obligation of the Company or any Company Subsidiary. For the avoidance
of doubt, Excluded FNF Liabilities shall not include any Liabilities
of FNF, whether due or to become due, for any out-of-pocket expenses
(including all fees and disbursements of financial advisors, legal
counsel and other advisors and consultants to FNF and the special
committee of the board of directors of FNF) incurred in connection
with the Asset Contribution (as defined in the Securities Exchange
Agreement), the Spin-off, the Merger and the other transactions
contemplated by this Agreement.
(iii) "Liabilities" means any direct or indirect liability,
indebtedness, claim, loss, damage, deficiency, obligation, penalty,
responsibility, cost or expense, fixed or unfixed, ▇▇▇▇▇▇ or inchoate,
liquidated or unliquidated, secured or unsecured, accrued, absolute,
known or unknown, contingent or otherwise.
(iv) "person" means an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or
other entity;
(v) a "subsidiary" of any person means another person 50% or more
of the total combined voting power of all classes of capital stock or
other voting interests of which, or 50% of more of the equity
securities of which, is owned directly or indirectly by such first
person;
(vi) the "transactions contemplated by this Agreement" and
"transactions contemplated hereby" shall include the Merger but not
the Spin-off and the execution, delivery and performance by the
parties thereto of the Spin-off Agreements; and
(vii) the following terms have the meaning set forth in the
Section set forth below:
TERM SECTION
---- --------
Agreement............................................................ Preamble
Assumed Option....................................................... 2.2(a)
Assumed Restricted Share............................................. 2.1(d)
Assumption Agreement................................................. 3.1(p)
Benefit Plans........................................................ 3.1(g)
business day......................................................... 1.2
Certificate of Incorporation......................................... 1.5
Closing.............................................................. 1.2
Closing Date......................................................... 1.2
Code................................................................. Recitals
Company.............................................................. Preamble
Company Acquisition Proposal......................................... 5.7(b)
Company Benefit Plans................................................ 3.2(g)
Company By-laws...................................................... 1.5(b)
Company Charter...................................................... 1.5(a)
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Company Common Stock................................................. 2.1(b)
Company Commonly Controlled Entity................................... 3.2(g)
Company Disclosure Schedule.......................................... 3.2(b)
Company Incentive Plan Amendment..................................... 5.21
Company Material Adverse Effect...................................... 3.2(a)
Company SEC Documents................................................ 3.2(d)
Company Special Committee............................................ Recitals
Company Stock Plans.................................................. 3.2(b)
Company Shareholder Approval......................................... 3.2(c)
Company Shareholders Meeting......................................... 5.3
Company Subsidiary................................................... 3.2(a)
Conversion Number.................................................... 2.1(b)
Cross-Indemnity Agreement............................................ 5.16
Delaware Certificate of Merger....................................... 1.3
Delaware Secretary of State.......................................... 1.3
DGCL................................................................. Recitals
Effective Time....................................................... 1.3
ERISA................................................................ 3.1(g)
Excess Shares........................................................ 2.3(f)
Exchange Act......................................................... 3.1(c)
Exchange Agent....................................................... 2.3(a)
Exchange Fund........................................................ 2.3(a)
Executive Officers................................................... 3.1(e)
Filed Company SEC Documents.......................................... 3.2(e)
Filed FNF SEC Documents.............................................. 3.1(e)
FNF.................................................................. Preamble
FNF Acquisition Proposal............................................. 5.7(a)
FNF By-laws.......................................................... 3.1(a)
FNF Charter.......................................................... 3.1(a)
FNF Common Stock..................................................... Recitals
FNF Disclosure Schedule.............................................. 2.2(a)
FNF Material Adverse Effect.......................................... 3.1(a)
FNF Restricted Share................................................. 2.1(d)
FNF SEC Documents.................................................... 3.1(d)
FNF Special Committee................................................ Recitals
FNF Stockholders Meeting............................................. 5.3
FNF Stock Option..................................................... 2.2(a)
FNF Stock Option Plans............................................... 2.2(a)
FNT.................................................................. Recitals
Form S-4............................................................. 3.1(q)
GBCC................................................................. Recitals
Georgia Certificate of Merger........................................ 1.3
Georgia Secretary of State........................................... 1.3
IRS.................................................................. 3.1(h)
Proxy Statement...................................................... 3.1(q)
Merger............................................................... Recitals
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Merger Consideration................................................. 2.1(b)
NYSE................................................................. 2.3(f)
Option Exchange Number............................................... 2.2(a)
Pension Plan......................................................... 3.1(g)
Permits.............................................................. 3.1(k)
Related Party Agreements............................................. 5.17
Securities Act....................................................... 3.1(d)
Securities Exchange Agreement........................................ Recitals
Spin-off............................................................. Recitals
Spin-off Agreements.................................................. Recitals
Stock Consideration.................................................. 2.1(b)
Surviving Company.................................................... 1.1
Tax Disaffiliation Agreement......................................... 5.16
Termination Date..................................................... 7.1(b)
Welfare Plan......................................................... 3.1(g)
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SECTION 8.4. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof of
delivery) or by facsimile to the parties at the following addresses or facsimile
number (or at such other address for a party as shall be specified by like
notice):
(i) if to the Company, to
Fidelity National Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
and, if prior to Closing, with a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(ii) if to FNF, to
Fidelity National Financial, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
and, if prior to Closing, with a copy to:
LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. Boss
and, if prior to Closing, with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Any notice, request, instruction or other document given as provided above shall
be deemed given to the receiving party upon actual receipt, if delivered
personally; on the next business day after deposit with an overnight courier, if
sent by an overnight courier; or upon confirmation of successful transmission if
sent by facsimile (provided that if given by facsimile such notice, request,
instruction or other document shall be followed up within one business day by
dispatch pursuant to one of the other methods described herein).
SECTION 8.5. Interpretation. When a reference is made in this
Agreement to a Section, Exhibit or Schedule, such reference shall be to a
Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated. Any fact or item disclosed on any section of the FNF Disclosure
Schedule or the Company Disclosure Schedule shall be deemed disclosed on all
other sections of the Disclosure Schedule to which such fact or item may apply.
Disclosure of any item in the FNF Disclosure Schedule or the Company Disclosure
Schedule shall not be deemed an admission that such item represents a material
item, fact, exception of fact, event or circumstance or that occurrence or
non-occurrence of any change or effect related to such item would result in an
FNF Material Adverse Effect or Company Material Adverse Effect, as applicable.
The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
SECTION 8.6. 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 counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 8.7. Entire Agreement; Third-Party Beneficiaries. This
Agreement (including the FNF Disclosure Schedule and the Company Disclosure
Schedule) and the other agreements referred to herein constitute the entire
agreement, and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter of this
Agreement. This Agreement is not intended to confer upon any person other than
the parties hereto any rights or remedies. The representations and warranties in
this Agreement are the product of negotiations among the parties hereto and are
for the sole benefit of the parties hereto. Any inaccuracies in such
representations and warranties are subject to waiver by the parties hereto in
accordance with this Agreement without notice or liability to any other person.
In some instances, the representations and warranties in this Agreement may
represent an allocation among the parties hereto of risks associated with
particular matters regardless of the knowledge of any of the parties hereto.
Consequently, persons other than the parties hereto may not rely upon the
representations and warranties in this Agreement as characterizations of actual
facts or circumstances as of the date of this Agreement or as of any other date.
SECTION 8.8. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation
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of law or otherwise (other than by operation of law in a merger) by any of the
parties without the prior written consent of the other party, and any such
assignment that is not consented to shall be null and void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
SECTION 8.9. Governing Law. This Agreement deemed to be made and in
all respects shall be governed by, and interpreted and construed in accordance
with, the laws of the State of New York without regard to the conflict of law
principles thereof (other than those provisions set forth herein that are
required to be governed by the DGCL or the GBCC).
SECTION 8.10. Enforcement; Venue; Waiver of Jury Trial.
(a) The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to seek an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States or any state
court, which in either case is located in the City of Jacksonville (any such
federal or state court, a "Jacksonville Court"), in addition to any other remedy
to which they are entitled at law or in equity. In addition, each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of any
Jacksonville Court in the event any dispute arises out of this Agreement or any
of the transactions contemplated by this Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction or venue by motion or other
request for leave from any such Jacksonville Court and (c) agrees that it will
not bring any action relating to this Agreement or any of the transactions
contemplated by this Agreement in any court other than a Jacksonville Court.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 8.10.
SECTION 8.11. Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
-46-
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
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IN WITNESS WHEREOF, the Company and FNF have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all as of the
date first written above.
FIDELITY NATIONAL INFORMATION
SERVICES, INC.
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FIDELITY NATIONAL FINANCIAL, INC.
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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