EXHIBIT 99.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 9, 2003
BY AND AMONG
FIDELITY NATIONAL FINANCIAL, INC.,
ANFI MERGER SUB, INC.
AND
ANFI, INC.
TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS................................................. 1
Section Definitions................................................. 1
1.1
ARTICLE II THE MERGER.................................................. 5
Section The Merger Sub.............................................. 5
2.1
Section The Merger.................................................. 5
2.2
Section Articles of Incorporation and By-laws of the Surviving
2.3 Corporation................................................. 5
Section Board of Directors of the Surviving Corporation............. 5
2.4
ARTICLE III CONVERSION OF SECURITIES AND RELATED MATTERS................ 6
Section Conversion of Capital Stock................................. 6
3.1
Section Fractional Shares; Adjustments.............................. 6
3.2
Section Exchange of Certificates.................................... 6
3.3
Section ANFI Stock Options and Warrants............................. 8
3.4
Section Shares of Dissenting Shareholders........................... 9
3.5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ANFI...................... 9
Section Corporate Existence and Power............................... 9
4.1
Section Corporate Authorization..................................... 9
4.2
Section Governmental Authorization.................................. 9
4.3
Section Non-Contravention........................................... 10
4.4
Section Capitalization.............................................. 10
4.5
Section Subsidiaries................................................ 10
4.6
Section The ANFI SEC Documents...................................... 11
4.7
Section Financial Statements........................................ 11
4.8
Section No Material Undisclosed Liabilities......................... 11
4.9
Section Information to Be Supplied.................................. 11
4.10
Section Absence of Certain Changes.................................. 12
4.11
Section Transactions with Affiliates................................ 12
4.12
Section Litigation.................................................. 12
4.13
Section Taxes....................................................... 12
4.14
Section Employees and Employee Benefits............................. 13
4.15
Section Compliance with Laws........................................ 14
4.16
Section Directors' and Officers' Insurance Policies................. 14
4.17
Section Environmental Matters....................................... 14
4.18
Section Finders' Fees; Opinion of Financial Advisor................. 15
4.19
Section Required Vote; Board Approval............................... 15
4.20
ARTICLE V REPRESENTATIONS AND WARRANTIES OF FNF AND MERGER SUB........ 15
Section Corporate Existence and Power............................... 15
5.1
Section Corporate Authorization..................................... 15
5.2
Section Governmental Authorization.................................. 16
5.3
Section Non-Contravention........................................... 16
5.4
Section Capitalization of FNF and Merger Sub........................ 16
5.5
Section Subsidiaries................................................ 17
5.6
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Section FNF SEC Documents........................................... 17
5.7
Section Financial Statements........................................ 17
5.8
Section No Material Undisclosed Liabilities......................... 18
5.9
Section Information to Be Supplied.................................. 18
5.10
Section Absence of Certain Changes.................................. 18
5.11
Section Transactions with Affiliates................................ 18
5.12
Section Litigation.................................................. 18
5.13
Section Compliance with Laws........................................ 18
5.14
Section Finders' Fees; Opinion of Financial Advisor................. 19
5.15
Section Required Vote; Board Approval............................... 19
5.16
Section Taxes....................................................... 19
5.17
Section Employees and Employee Benefits............................. 19
5.18
Section Environmental Matters....................................... 20
5.19
Section Shareholder Consent......................................... 20
5.20
Section Assets and Liabilities...................................... 21
5.21
ARTICLE VI COVENANTS OF ANFI........................................... 21
Section ANFI Interim Operations..................................... 21
6.1
Section Shareholder Meeting......................................... 23
6.2
Section Acquisition Proposals; Board Recommendation................. 23
6.3
Section New Employment Agreements................................... 24
6.4
Section Registration Rights......................................... 24
6.5
ARTICLE VII COVENANTS OF FNF............................................ 24
Section Indemnification, Exculpation and Insurance.................. 24
7.1
Section Stock Exchange Listing...................................... 24
7.2
Section Merger Sub Shareholder Consent.............................. 24
7.3
ARTICLE VIII COVENANTS OF FNF, MERGER SUB AND ANFI....................... 25
Section Commercially Reasonable Efforts............................. 25
8.1
Section Certain Filings; Cooperation in Receipt of Consents......... 25
8.2
Section Public Announcements........................................ 26
8.3
Section Access to Information; Notification of Certain Matters...... 26
8.4
Section Further Assurances.......................................... 27
8.5
Section Tax Matters................................................. 27
8.6
Section Control of Other Party's Business........................... 27
8.7
Section Affiliate Letters........................................... 27
8.8
ARTICLE IX CONDITIONS TO THE MERGER.................................... 27
Section Conditions to the Obligations of Each Party................. 27
9.1
Section Conditions to the Obligations of ANFI....................... 28
9.2
Section Conditions to the Obligations of FNF and Merger Sub......... 28
9.3
ARTICLE X TERMINATION................................................. 29
Section Termination................................................. 29
10.1
Section Effect of Termination....................................... 30
10.2
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Section Expenses.................................................... 30
10.3
Section Termination Fee............................................. 30
10.4
ARTICLE XI MISCELLANEOUS............................................... 31
Section Survival.................................................... 31
11.1
Section Notices..................................................... 31
11.2
Section Amendments; No Waivers...................................... 32
11.3
Section Successors and Assigns...................................... 32
11.4
Section Governing Law............................................... 32
11.5
Section Counterparts; Effectiveness; Third Party Beneficiaries...... 32
11.6
Section Jurisdiction................................................ 32
11.7
Section Waiver of Jury Trial........................................ 32
11.8
Section Arbitration................................................. 32
11.9
Section Enforcement................................................. 33
11.10
Section Entire Agreement............................................ 33
11.11
Section Attorneys' Fees............................................. 33
11.12
Exhibit A Modification to Existing Employment Agreements
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of January 9, 2003 (the
"Agreement"), is made and entered into by and among Fidelity National Financial,
Inc., a Delaware corporation ("FNF"), ANFI Merger Sub, Inc., a
California
corporation and a wholly-owned subsidiary of FNF ("Merger Sub"), and ANFI, Inc.,
a
California corporation ("ANFI").
RECITALS
WHEREAS, the Boards of Directors of FNF, Merger Sub and ANFI each have
determined that a business combination between FNF and ANFI is advisable and in
the best interests of their respective companies and stockholders and presents
an opportunity for FNF and ANFI to achieve long-term strategic and financial
benefits, and accordingly have agreed to effect the merger provided for herein
upon the terms and subject to the conditions set forth herein;
WHEREAS, each of the ANFI Senior Executives (as defined herein) shall,
concurrently with the effectiveness of this Agreement, enter into a voting
agreement to vote in favor of the transactions contemplated herein;
WHEREAS, the transaction will be structured as a forward triangular merger,
wherein ANFI will be merged with and into a newly formed, wholly-owned
subsidiary of FNF, with such wholly-owned subsidiary emerging as the surviving
corporation and as a wholly-owned subsidiary of FNF;
WHEREAS, the parties hereto intend that the merger provided for herein
shall qualify for U.S. federal income tax purposes as a reorganization under
Section 368(a)(2)(D) of the U.S. Internal Revenue Code of 1986, as amended
(together with the rules and regulations promulgated thereunder, the "Code");
and
WHEREAS, by resolutions duly adopted, the respective Boards of Directors of
FNF, Merger Sub and ANFI have approved and adopted this Agreement and the
transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) As used herein, the following terms have the following meanings:
"Acquisition Proposal" means any offer or proposal for, or indication of
interest in, a merger, consolidation, share exchange, business combination,
reorganization, recapitalization, liquidation, dissolution or other similar
transaction involving, or any purchase or acquisition of, twenty-five percent
(25%) or more of (i) any class of equity securities of ANFI or (ii) all or
substantially all of the consolidated assets of ANFI and its Subsidiaries, other
than the transactions contemplated by this Agreement.
"Action" means any action, appeal, petition, plea, charge, complaint,
claim, suit, demand, litigation, arbitration, mediation, hearing, inquiry,
investigation or similar event, occurrence, or proceeding.
"Affiliate" means, with respect to any Person, any other Person, directly
or indirectly, controlling, controlled by, or under common control with, such
Person. For purposes of this definition, the term "Control" (including the
correlative terms "Controlling", "Controlled By" and "Under Common Control
With") means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
"ANFI" is defined in the Introduction hereto.
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"ANFI Balance Sheet" means ANFI's consolidated balance sheet included in
the ANFI 10-K relating to its fiscal year ended on December 31, 2001.
"ANFI Common Share" means one share of common stock of ANFI, no par value
per share.
"ANFI SEC Documents" means (i) the annual report on Form 10-K of ANFI (the
"ANFI 10-K") for the fiscal year ended December 31, 2001, (ii) ANFI's proxy
statement, dated April 30, 2002, relating to the 2002 Annual Meeting of
Shareholders (the "ANFI Proxy Statement"), (iii) the quarterly reports on Form
10-Q of ANFI (collectively, the "ANFI 10-Qs") for the quarterly periods ended
March 31, 2002, June 30, 2002 and September 30, 2002, and (iv) all other
reports, filings, registration statements and other documents filed by ANFI with
the SEC since December 31, 2001.
"ANFI Senior Executives" means each of the members of the Board of
Directors of ANFI as of the date of this Agreement.
"Breach" means any breach, inaccuracy, failure to perform, failure to
comply, conflict with, default, violation, acceleration, termination,
cancellation, modification, or required notification.
"Business Day" means any day other than a Saturday, Sunday or one on which
banks are authorized by law to close in Los Angeles,
California.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"FNF" is defined in the Introduction hereto.
"FNF Balance Sheet" means FNF's consolidated balance sheet included in the
FNF 10-K relating to its fiscal year ended on December 31, 2001.
"FNF Common Share" means one share of common stock of FNF, $0.0001 par
value per share.
"FNF Common Share Closing Price" shall mean the closing sale price of a FNF
Common Share (calculated to the nearest 0.0001) on the NYSE Composite
Transactions Tape on the date of the Closing.
"FNF SEC Documents" means (i) FNF's annual report on Form 10-K for its
fiscal year ended December 31, 2001 (the "FNF 10-K"), (ii) FNF's proxy statement
dated April 29, 2002, relating to the 2002 Annual Meeting of Stockholders (the
"FNF Proxy Statement"), (iii) FNF's quarterly reports on Form 10-Q for the
quarterly periods ended March 31, 2002, June 30, 2002 and September 30, 2002
(collectively, the "FNF 10-Qs"), and (iv) all other reports, filings,
registration statements and other documents filed by FNF with the SEC since
December 31, 2001.
"GCL" shall mean the General Corporation Law of the State of
California as
in effect from time to time.
"Governmental Entity" means any federal, state, municipal or local
governmental authority, any foreign or international governmental authority, or
any court, administrative or regulatory agency or commission or other
governmental agency.
"Knowledge" (and all correlative terms) as to any party means to the actual
knowledge of such party's executive officers or senior management identified on
Section 1.1 of that party's Disclosure Schedule.
"Law" means all laws, statutes and ordinances and all regulations, rules
and other pronouncements of Governmental Entities having the effect of law of
the United States, any foreign country or any foreign or domestic state,
province, commonwealth, city, country, municipality, territory, protectorate,
possession or similar instrumentality or any Governmental Entity thereof.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset;
provided, however, that the term "Lien" shall not include (i) liens for water
and sewer charges and taxes not yet due and payable or being contested in good
faith (and for which adequate accruals or reserves have been established by FNF
or ANFI, as the case may be) and (ii) mechanics', carriers', workers',
repairers', materialmen's, warehousemen's and other similar liens arising or
incurred in the ordinary course of business.
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"Material Adverse Effect" means a material adverse effect on the financial
condition, business or results of operations of a Person and its Subsidiaries,
taken as a whole, other than (x) effects caused by (i) changes in general
economic or securities markets conditions, (ii) changes in interest rate levels,
(iii) (A) in the case of ANFI, the identity of FNF as acquiror of ANFI or the
conduct of FNF with respect to the transactions contemplated by this Agreement
prior to the Effective Time, or (B) in the case of FNF, the identity of ANFI as
the acquired party or the conduct of ANFI with respect to the transactions
contemplated by this Agreement prior to the Effective Time, or (iv) the public
announcement of the transactions contemplated by this Agreement. "FNF Material
Adverse Effect" means a Material Adverse Effect in respect of FNF and its
Subsidiaries, taken as a whole, and "ANFI Material Adverse Effect" means a
Material Adverse Effect in respect of ANFI and its Subsidiaries, taken as a
whole.
"Merger Shares" means each ANFI Common Share outstanding immediately prior
to the Effective Time (other than Dissenting Shares (as hereinafter defined) and
other than shares to be cancelled in accordance with Section 3.1(a) hereof).
"Merger Sub" shall have the meaning set forth in the Preamble.
"NYSE" means the New York Stock Exchange.
"Person" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including any Governmental Entity.
"Proxy Statement/Prospectus" means the proxy statement/prospectus,
including the Registration Statement, for the ANFI Shareholders Meeting,
together with any amendments or supplements thereto.
"Registration Statement" means the Registration Statement on Form S-4
registering under the Securities Act the FNF Common Shares issuable in
connection with the Merger.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Subsidiary" when used with respect to any Person, means any other Person,
whether incorporated or unincorporated, of which (i) more than fifty percent
(50%) of the securities or other ownership interests or (ii) securities or other
interests having by their terms ordinary voting power to elect more than fifty
percent of the board of directors or others performing similar functions with
respect to such corporation or other organization, is directly owned or
controlled by such Person or by any one or more of its Subsidiaries; provided,
however, Fidelity National Information Solutions, Inc., a Delaware corporation,
shall be excluded from the definition of Subsidiary.
"Superior Proposal" means a written proposal made by a Person other than
FNF which is (A) for a merger, consolidation, share exchange, business
combination, reorganization, recapitalization, liquidation, dissolution or other
similar transaction involving, or any purchase or acquisition of, twenty-five
percent (25%) or more of (i) any class of equity securities of ANFI or (ii) the
consolidated assets of ANFI and its Subsidiaries, and which is (B) otherwise on
terms which ANFI's Board of Directors by a majority vote determines in good
faith (after consultation with its investment advisors and outside legal
counsel) would result in a transaction, if consummated, that is more favorable
to ANFI's shareholders, from a financial point of view (taking into account,
among other things, all legal, financial, regulatory and other aspects of the
proposal, including conditions to consummation (which shall not include a
financing condition)) than the transactions contemplated hereby.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERMS SECTION
----- -------------------
Agreement of Merger......................................... Section 2.2(b)
ANFI 10-K................................................... Section 1.1
ANFI 10-Qs.................................................. Section 1.1
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TERMS SECTION
----- -------------------
ANFI Employee Plans......................................... Section 4.15(a)
ANFI ESPP................................................... Section 3.4(d)
ANFI GAAP Financial Statements.............................. Section 4.8
ANFI Material Adverse Effect................................ Section 1.1
ANFI Option................................................. Section 3.4(a)
ANFI Proxy Statement........................................ Section 1.1
ANFI Recommendation......................................... Section 6.2
ANFI Returns................................................ Section 4.14
ANFI Securities............................................. Section 4.5(b)
ANFI Shareholder Approval................................... Section 4.20(a)
ANFI Shareholders Meeting................................... Section 6.2
ANFI Warrant................................................ Section 3.4(b)
Burdensome Condition........................................ Section 8.1
Certificate................................................. Section 3.3(b)
Closing..................................................... Section 2.2(d)
Code........................................................ Recitals
Dissenting Shares........................................... Section 3.5(a)
Effective Time.............................................. Section 2.2(b)
End Date.................................................... Section 10.1(b)(i)
Environmental Laws.......................................... Section 4.18(b)
ERISA....................................................... Section 4.15(a)
Exchange Agent.............................................. Section 3.3(a)
Exchange Fund............................................... Section 3.3(a)
Extended End Date........................................... Section 10.1(b)(i)
FNF 10-K.................................................... Section 1.1
FNF 10-Qs................................................... Section 1.1
FNF Employee Plans.......................................... Section 5.18(a)
FNF GAAP Financial Statements............................... Section 5.8
FNF Material Adverse Effect................................. Section 1.1
FNF Option.................................................. Section 3.4(a)
FNF Proxy Statement......................................... Section 1.1
FNF Returns................................................. Section 5.17
FNF Securities.............................................. Section 5.5(b)
FNF Warrant................................................. Section 3.4(b)
GAAP........................................................ Section 4.8
HSR Act..................................................... Section 4.3
JAMS........................................................ Section 11.9
Merger...................................................... Section 2.2(a)
Merger Consideration........................................ Section 3.1(b)
Senior Executive Cap........................................ Section 3.4(a)
Surviving Corporation....................................... Section 2.2(a)
Surviving Corporation By-laws............................... Section 2.3
Surviving Corporation Certificate........................... Section 2.3
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ARTICLE II
THE MERGER
SECTION 2.1 The Merger Sub. Prior to the Effective Time, FNF shall elect
the boards of directors and officers of the Merger Sub and cause the Merger Sub
to take such other actions as are necessary or required for the purposes of
effecting the transactions contemplated by this Agreement.
SECTION 2.2 The Merger.
(a) Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the GCL, ANFI shall be merged with and into
Merger Sub at the Effective Time (the "Merger"). At the Effective Time, (i) the
separate corporate existence of ANFI shall cease, and (ii) Merger Sub shall
continue as the surviving corporation as a direct wholly-owned subsidiary of FNF
(the "Surviving Corporation").
(b) Not later than the second Business Day after satisfaction or, to the
extent permitted hereby, waiver of the conditions set forth in Article IX (other
than conditions that by their nature are to be satisfied at the Closing, but
subject to those conditions), ANFI and the Merger Sub will file an agreement of
merger (the "Agreement of Merger") with the Secretary of State of the State of
California and make all other filings or recordings required by the GCL in
connection with the Merger. The Merger shall become effective upon the filing of
the Agreement of Merger with the Secretary of State of the State of
California
in accordance with the GCL or at such later time which the parties hereto shall
have agreed upon and designated in such Agreement of Merger as the effective
time of the Merger (the "Effective Time").
(c) From and after the Effective Time, the Merger shall have the effects
set forth in the GCL.
(d) The closing of the Merger (the "Closing") shall be held at the offices
of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ (or such other place as agreed by the parties) at 9:00 a.m.
California time on a date to be specified by the parties, which shall be no
later than the second Business Day after satisfaction or, to the extent
permitted hereby, waiver of the conditions set forth in Article IX (other than
conditions that by their nature are to be satisfied at the Closing, but subject
to those conditions), unless the parties hereto agree to another date or time.
SECTION 2.3 Articles of Incorporation and By-laws of the Surviving
Corporation. The articles of incorporation of the Merger Sub, as in effect
immediately prior to the Effective Time, shall be the articles of incorporation
of the Surviving Corporation until thereafter changed or amended as provided
therein or by applicable law (as so amended, the "Surviving Corporation
Certificate"). The by-laws of the Merger Sub, as in effect immediately prior to
the Effective Time, shall be the by-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law (as so
amended, the "Surviving Corporation By-laws").
SECTION 2.4 Board of Directors of the Surviving Corporation. Prior to the
Effective Time, FNF shall cause the Merger Sub to adopt resolutions to
constitute the Board of Directors of the Merger Sub and committees thereof from
and after the Effective Time. From and after the Effective Time, the members of
the Board of Directors, the committees of the Board of Directors and the
composition of such committees shall be as set forth on or designated in
accordance with the Surviving Corporation Certificate, the Surviving Corporation
By-laws and such resolutions until the earlier of the resignation or removal of
any individual set forth on or designated in accordance with the Surviving
Corporation Certificate, the Surviving Corporation By-laws and such resolutions
or until their respective successors are duly elected and qualified, as the case
may be, or until as otherwise provided in the Surviving Corporation Certificate,
the Surviving Corporation By-laws and such resolutions.
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ARTICLE III
CONVERSION OF SECURITIES AND RELATED MATTERS
SECTION 3.1 Conversion of Capital Stock. At the Effective Time, by virtue
of the Merger:
(a) Each ANFI Common Share held by ANFI as treasury stock or owned by
FNF or any of its Subsidiaries immediately prior to the Effective Time
shall be cancelled, and no payment shall be made in respect thereof.
(b) Subject to Section 3.5 hereof, each Merger Share shall be
cancelled and, at the Effective Time, shall be converted into the right to
receive consideration (the "Merger Consideration") consisting of 0.4540 FNF
Common Share and any payment for fractional shares as provided in Section
3.2 hereof.
SECTION 3.2 Fractional Shares; Adjustments.
(a) No certificate or scrip representing fractional FNF Common Shares shall
be issued upon the surrender for exchange of ANFI Common Stock, and such
fractional share interests will not entitle the owner thereof to vote or to any
other rights of a stockholder of FNF. Notwithstanding any other provision of
this Agreement, each holder of ANFI Common Shares exchanged pursuant to the
Merger who would otherwise have been entitled to receive a fraction of a FNF
Common Share (after taking into account all ANFI Common Shares delivered by such
holder) shall receive, in lieu thereof, cash (without interest) in an amount
equal to such fractional part of a FNF Common Share multiplied by the FNF Common
Share Closing Price, which the Board of Directors of FNF has determined to be
the fair value of such shares.
(b) If at any time during the period between December 13, 2002 and the
Effective Time, any change in the outstanding shares of capital stock of FNF or
ANFI, as applicable, or securities convertible or exchangeable into capital
stock of FNF or ANFI, as applicable, shall occur by reason of any
reclassification, recapitalization, stock split or combination, exchange or
readjustment of shares, or any stock or cash dividend or distribution thereon
(other than regular quarterly cash dividends) or a record date with respect to
any of the foregoing shall occur during such period, the number of FNF Common
Shares constituting the Merger Consideration shall be appropriately adjusted to
provide to the holders of the FNF Common Shares and the ANFI Common Shares the
same economic effect as contemplated by this Agreement prior to the consummation
of such event. By way of example, if FNF declares a ten percent (10%) stock
dividend, the Merger Consideration shall be adjusted to equal 0.4994 FNF Common
Shares for each Merger Share (rather than 0.4540 FNF Common Shares for each
Merger Share) together with any payment of cash for fractional shares.
SECTION 3.3 Exchange of Certificates.
(a) Exchange Agent. Promptly after the date hereof, FNF shall appoint a
commercial bank or trust company reasonably acceptable to ANFI as an exchange
agent (the "Exchange Agent") for the benefit of holders of ANFI Common Shares.
At or immediately prior to the Effective Time, FNF shall deposit with the
Exchange Agent, for exchange in accordance with this Section, through the
Exchange Agent, (i) certificates evidencing the total number of FNF Common
Shares to be issued in the Merger, and (ii) cash in the amount necessary to pay
amounts due pursuant to Section 3.2(a) and Section 3.5 (such certificates for
FNF Common Shares and such cash being hereinafter referred to as the "Exchange
Fund"). The Exchange Agent shall, pursuant to irrevocable instructions in
accordance with this Article III, deliver the FNF Common Shares and cash
contemplated to be issued pursuant to this Article III out of the Exchange Fund.
Except as contemplated by Section 3.3(e), Section 3.3(f) or Section 3.3(g)
hereof, the Exchange Fund shall not be used for any other purpose.
(b) Exchange Procedures. As promptly as practicable after the Effective
Time, FNF shall send, or will cause the Exchange Agent to send, to each holder
of record of ANFI Common Shares that were converted into the right to receive
FNF Common Shares and cash in lieu of fractional shares pursuant this Article
III, a letter of transmittal and instructions (which shall be in customary form
and specify that delivery shall be effected, and risk of loss and title shall
pass, only upon delivery of the ANFI Common Shares to the Exchange Agent), for
use in the exchange contemplated by this Section. Upon surrender of a
certificate representing
6
ANFI Common Shares to the Exchange Agent (a "Certificate"), together with a duly
executed letter of transmittal, the holder of such Certificate shall be entitled
to receive in exchange therefor a certificate representing that number of whole
FNF Common Shares and cash which such holder has the right to receive pursuant
to the provisions of this Article III (after giving effect to any required
withholding tax). Until surrendered as contemplated by this Section, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive the Merger Consideration and unpaid dividends and
distributions thereon, if any, as provided in this Article III. If any portion
of the Merger Consideration is to be paid to a Person other than the Person in
whose name the Certificate is registered, it shall be a condition to such
payment that the Certificate so surrendered shall be properly endorsed or
otherwise be in proper form for transfer and that the Person requesting such
payment shall pay to the Exchange Agent any transfer or other taxes required as
a result of such payment to a Person other than the registered holder of such
Certificate or establish to the satisfaction of the Exchange Agent that such tax
has been paid or is not payable. If any Certificate 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
FNF, the posting by such Person of a bond, in such reasonable amount as FNF may
direct, as indemnity against any claim that may be made against it with respect
to such Certificate, the Exchange Agent will deliver, in exchange for such lost,
stolen or destroyed Certificate, the proper amount of the Merger Consideration,
together with any unpaid dividends and distributions on any such FNF Common
Shares, as contemplated by this Article III.
(c) Distributions with Respect to Unexchanged Shares. Whenever a dividend
or other distribution is declared by FNF in respect of the FNF Common Shares,
the record date for which is at or after the Effective Time, that declaration
shall include dividends or other distributions in respect of all FNF Common
Shares issuable pursuant to this Agreement. No dividends or other distributions
declared or made after the Effective Time with respect to FNF Common Shares
constituting part of the Merger Consideration shall be paid to the holder of any
unsurrendered Certificate, and no cash payment in lieu of fractional shares
shall be paid to any such holder, until such Certificate is surrendered as
provided in this Section. Following such surrender, there shall be paid, without
interest, to the Person in whose name the FNF Common Shares have been registered
(i) at the time of such surrender, the amount of dividends or other
distributions with a record date at or after the Effective Time previously paid
or payable on the date of such surrender with respect to such whole FNF Common
Shares, less the amount of any withholding taxes that may be required thereon,
and (ii) at the appropriate payment date subsequent to surrender, the amount of
dividends or other distributions with a record date at or after the Effective
Time but prior to surrender and a payment date subsequent to surrender payable
with respect to such whole FNF Common Shares, less the amount of any withholding
taxes which may be required thereon.
(d) No Further Ownership Rights in ANFI Common Shares. As of the Effective
Time, all ANFI Common Shares outstanding immediately prior to the Effective Time
shall automatically be cancelled and retired and shall cease to exist, and each
holder of a Certificate representing any such ANFI Common Shares shall cease to
have any rights with respect thereto, except the right to receive, upon
surrender of such Certificate, the Merger Consideration. As of the Effective
Time, the stock transfer books of ANFI shall be closed and there shall be no
further registration of transfers on ANFI's stock transfer books of ANFI Common
Shares outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates (other than the Certificate for the ANFI Common
Stock described in Section 3.1(c)) are presented to the Surviving Corporation
for any reason, they shall be cancelled and exchanged as provided in this
Section.
(e) Return of Merger Consideration. Upon demand by FNF, the Exchange Agent
shall deliver to FNF any portion of the Merger Consideration deposited with the
Exchange Agent pursuant to this Section that remains undistributed to holders of
ANFI Common Shares one year after the Effective Time. Holders of Certificates
who have not complied with this Section prior to such demand shall thereafter
look only to FNF for payment of any claim to the Merger Consideration and
dividends or distributions, if any, in respect thereof.
(f) No Liability. Neither FNF nor the Exchange Agent shall be liable to
any Person in respect of any ANFI Common Shares (or dividends or distributions
with respect thereto) for any amounts paid to a public official pursuant to any
applicable abandoned property, escheat or similar law.
7
(g) Withholding Rights. FNF shall be entitled to deduct and withhold from
the Merger Consideration (and any dividends or distributions thereon) otherwise
payable hereunder to any Person such amounts as it is required to deduct and
withhold with respect to the making of such payment under any provision of
federal, state, local or foreign income tax law. To the extent that FNF so
withholds those amounts, such withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the holder of ANFI Common Shares in
respect of which such deduction and withholding was made by FNF.
SECTION 3.4 ANFI Stock Options and Warrants.
(a) At the Effective Time, each option to purchase ANFI Common Shares
(each, a "ANFI Option") outstanding under any stock option or compensation plan
or arrangement of ANFI, whether or not vested or exercisable, shall be assumed
by FNF and shall retain its respective right to convert into a FNF Option, and
shall cease to represent a right to acquire ANFI Common Shares and shall be
automatically converted into an option (each, a "FNF Option") to acquire, on the
same terms and conditions as were applicable under such ANFI Option, that number
of FNF Common Shares determined by multiplying the number of ANFI Common Shares
subject to such ANFI Option by 0.4540, subject to any adjustment as required in
Section 3.2(b) of this Agreement, with any fractional shares of FNF Common
Shares resulting from such calculation being rounded down to the nearest whole
share, at a price per share (rounded up to the nearest whole cent) equal to (x)
the aggregate exercise price for the ANFI Common Shares covered by such ANFI
Option divided by (y) the number of full FNF Common Shares covered by such FNF
Option in accordance with the foregoing. Notwithstanding anything to the
contrary in this Section 3.4, in no event shall FNF be required to assume ANFI
Options held by each ANFI Senior Executive that would be exercisable, in the
aggregate for each such ANFI Senior Executive, into more than 50,000 shares of
FNF Common Shares upon the conversion set forth in this Section 3.4 (the "Senior
Executive Cap"). FNF and ANFI shall cooperate in good faith with one another to
determine which ANFI Options shall be assumed within the Senior Executive Cap
(including without limitation based on compliance with the terms of the plans
under which such options are granted and to minimize acceleration of such
options).
(b) At the Effective Time, each outstanding warrant to purchase ANFI Common
Shares (each, an "ANFI Warrant"), whether or not vested or exercisable, shall
cease to represent a right to acquire ANFI Common Shares and shall be converted
into a warrant (each, a "FNF Warrant") to acquire, on the same terms and
conditions as were applicable under such ANFI Warrant, that number of FNF Common
Shares determined by multiplying the number of ANFI Common Shares subject to
such ANFI Warrant by the Exchange Ratio, with any fractional shares of FNF
Common Shares resulting from such calculation being rounded down to the nearest
whole share, at a price per share (rounded up to the nearest whole cent) equal
to (x) the aggregate exercise price for the ANFI Common Shares covered by such
ANFI Warrant divided by (y) the number of full FNF Common Shares covered by such
FNF Warrant in accordance with the foregoing.
(c) [intentionally left blank]
(d) At the Effective Time all ANFI employees will be eligible to become
participants in the FNF ESPP with credit for time of service with ANFI and
credit for time of participation in the ANFI Employee Stock Purchase Plan
adopted September 29, 1999 by the Board of Directors of ANFI (the "ANFI ESPP")
for all purposes including eligibility to participate in the FNF ESPP and to
receive matching contributions pursuant to the FNF ESPP. At the Effective Time,
all ANFI employees who are then participants in the ANFI ESPP shall
automatically become participants in the FNF ESPP, and the ANFI ESPP will be
terminated in accordance with its provisions.
(e) Prior to the Effective Time, FNF and ANFI shall take all actions
(including, if appropriate, amending the terms of ANFI's stock option plans and
other compensation plans or arrangements of FNF and/or ANFI) that are necessary
to give effect to the transactions contemplated by Sections 3.4(a) through (d).
(f) At or prior to the Effective Time, FNF shall take all corporate action
necessary to reserve for issuance a sufficient number of FNF Common Shares for
delivery upon exercise of the FNF Options. At the Effective Time, FNF shall file
a registration statement on Form S-8 (or any successor form), with respect to
8
the FNF Common Shares subject to such FNF Options and shall use its commercially
reasonable efforts to maintain the effectiveness of such registration
statement(s), maintain the current status of the prospectus(es) contained
therein and comply with all applicable state securities or "blue sky" laws for
so long as such FNF Options remain outstanding.
SECTION 3.5 Shares of Dissenting Shareholders.
(a) Notwithstanding anything in this Agreement to the contrary, although
the parties do not believe that any of the ANFI Common Shares qualify as
"dissenting shares" under Chapter 13 of the GCL (relating to dissenters'
rights), if Chapter 13 of the GCL is for some reason applicable, any ANFI Common
Shares that are dissenting shares as defined in Chapter 13 of the GCL (the
"Dissenting Shares") shall not be converted into or represent the right to
receive the Merger Consideration. Shareholders of the Dissenting Shares shall be
entitled to receive the amounts determined in accordance with the provisions of
the GCL. If, after the Effective Time, any such holder effectively withdraws the
demand for appraisal or fails to preserve such right to appraisal, in either
case pursuant to the GCL, such Dissenting Shares shall thereupon be deemed to
have been converted into and to have become exchangeable for, as of the
Effective Time, the right to receive, without any interest thereon, the Merger
Consideration as to such shares.
(b) Any payments relating to Dissenting Shares shall be made solely by the
Surviving Corporation, and ANFI shall not make any payment with respect to, or
settle or offer to settle with, the holders of Dissenting Shares without the
prior consent of FNF. ANFI shall give FNF prompt notice of any demands received
by ANFI for the payment of fair value for Dissenting Shares, and FNF shall have
the right to direct all negotiations and proceedings with respect to Dissenting
Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ANFI
Except as disclosed in (i) the ANFI Disclosure Schedule attached hereto or
(ii) the ANFI SEC Documents filed prior to the date hereof, ANFI represents and
warrants to FNF that:
SECTION 4.1 Corporate Existence and Power. ANFI is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of
California, and has all corporate powers required to carry on its business as
now conducted. ANFI is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where the character of the property
owned or leased by it or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified would not, individually
or in the aggregate, have an ANFI Material Adverse Effect. ANFI has heretofore
made available to FNF true and complete copies of ANFI's articles of
incorporation and by-laws as currently in effect.
SECTION 4.2 Corporate Authorization. The execution, delivery and
performance by ANFI of this Agreement and the consummation by ANFI of the
transactions contemplated hereby are within ANFI's corporate powers and, except
for the ANFI Shareholder Approval, have been duly authorized by all necessary
corporate action. Assuming that this Agreement constitutes the valid and binding
obligation of FNF, this Agreement constitutes a valid and binding agreement of
ANFI, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar laws, now or hereafter in
effect, relating to or affecting creditors' rights and remedies and to general
principles of equity.
SECTION 4.3 Governmental Authorization. The execution, delivery and
performance by ANFI of this Agreement and the consummation by ANFI of the
transactions contemplated hereby require no action by or in respect of, or
filing with, any Governmental Entity other than (a) the filing of the Agreement
of Merger in accordance with the GCL; (b) compliance with any applicable
requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of ▇▇▇▇ (▇▇▇
"▇▇▇ ▇▇▇") or decrees thereunder applicable to ANFI; (c) compliance with any
applicable requirements of the Securities Act and the Exchange Act; (d) such as
may be required under any applicable state securities or "blue sky" laws; (e)
filings listed on Section 4.3(e) of the ANFI Disclosure Schedule; (f) compliance
with any applicable Environmental Laws or state environmental property transfer
laws; and (g) such other consents, approvals, actions, orders, authorizations,
registrations,
9
declarations and filings which, if not obtained or made, would not, individually
or in the aggregate, (x) be reasonably likely to have an ANFI Material Adverse
Effect, or (y) prevent or materially impair the ability of ANFI to consummate
the transactions contemplated by this Agreement.
SECTION 4.4 Non-Contravention. Except as set forth on Section 4.4 of the
ANFI Disclosure Schedule, the execution, delivery and performance by ANFI of
this Agreement and the consummation by ANFI of the transactions contemplated
hereby do not and will not (a) contravene or conflict with ANFI's articles of
incorporation or by-laws, (b) assuming compliance with the matters referred to
in Section 4.3, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to ANFI or any of its Subsidiaries, (c) constitute a breach
or default under or give rise to a right of termination, cancellation or
acceleration of any right or obligation of ANFI or any of its Subsidiaries or to
a loss of any benefit or status to which ANFI or any of its Subsidiaries is
entitled under any provision of any agreement, contract or other instrument
binding upon ANFI or any of its Subsidiaries or any license, franchise, permit
or other similar authorization held by ANFI or any of its Subsidiaries, or (d)
result in the creation or imposition of any Lien on any asset of ANFI or any of
its Subsidiaries other than, in the case of each of (b), (c) and (d), any such
items that would not, individually or in the aggregate (x) be reasonably likely
to have an ANFI Material Adverse Effect or (y) prevent or materially impair the
ability of ANFI to consummate the transactions contemplated by this Agreement.
SECTION 4.5 Capitalization.
(a) The authorized capital stock of ANFI consists of 50,000,000 ANFI Common
Shares and no shares of preferred stock. As of December 31, 2002, there were
outstanding (i) 9,549,919 ANFI Common Shares, (ii) stock options (or binding
obligations to issue stock options) to purchase an aggregate of up to 2,989,456
ANFI Common Shares, (iii) warrants (or binding obligations to issue warrants) to
purchase an aggregate of up to 42,969 ANFI Common Shares (of which warrants to
purchase an aggregate of 42,969 ANFI Common Shares were currently exercisable),
and (iv) rights to purchase ANFI Common Shares pursuant to the ANFI ESPP. All
outstanding shares of capital stock of ANFI have been duly authorized and
validly issued and are fully paid and nonassessable.
(b) As of the date hereof, except (i) as set forth in this Section, (ii)
for issuances of options pursuant to the ANFI Employee Plans in the ordinary
course of business which were approved unanimously by the Board of Directors of
ANFI and which have been heretofore disclosed to FNF, (iii) for issuances of
ANFI Common Shares since January 9, 2003 pursuant to the ANFI ESPP in accordance
with its present terms, (iii) for changes since January 9, 2003 resulting from
the exercise of stock options, and (iv) for the rights of directors and
employees of ANFI and its Subsidiaries pursuant to ANFI Employee Plans as in
effect on the date hereof, there are no outstanding (x) shares of capital stock
or other voting securities of ANFI, (y) securities of ANFI convertible into or
exchangeable for shares of capital stock or voting securities of ANFI, and (z)
options or other rights to acquire from ANFI, and there is no obligation of ANFI
to issue, any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of ANFI (the items in
clauses (x), (y) and (z) being referred to collectively as the "ANFI
Securities"). There are no outstanding obligations of ANFI or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any ANFI Securities.
Neither the execution and delivery of this Agreement, nor the consummation of
the transactions contemplated herein, shall result in the acceleration of
vesting of any ANFI Option or otherwise result in any change to the terms of any
ANFI Option other than the conversion set forth in Section 3.4.
SECTION 4.6 Subsidiaries.
(a) Each Subsidiary of ANFI is a corporation duly incorporated or an entity
duly organized, and is validly existing and in good standing, under the laws of
its jurisdiction of incorporation or organization, has all powers and authority
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, in each case with such exceptions
as, individually or in the aggregate, would not be reasonably likely to have an
ANFI Material Adverse Effect.
10
(b) All of the outstanding shares of capital stock of, or other ownership
interest in, each Subsidiary of ANFI has been validly issued and is fully paid
and nonassessable. All of the outstanding capital stock of, or other ownership
interest, which is owned, directly or indirectly, by ANFI in, each of its
Subsidiaries is owned free and clear of any Lien and free of any other
limitation or restriction (including any limitation or restriction on the right
to vote, sell or otherwise dispose of such capital stock or other ownership
interests) with such exceptions as, individually or in the aggregate, would not
be reasonably likely to have an ANFI Material Adverse Effect. There are no
outstanding (i) securities of ANFI or any of its Subsidiaries convertible into
or exchangeable or exercisable for shares of capital stock or other voting
securities or ownership interests in any of its Subsidiaries, (ii) options,
warrants or other rights to acquire from ANFI or any of its Subsidiaries, and no
other obligation of ANFI or any of its Subsidiaries to issue, any capital stock,
voting securities or other ownership interests in, or any securities convertible
into or exchangeable or exercisable for any capital stock, voting securities or
ownership interests in, any of its Subsidiaries or (iii) obligations of ANFI or
any of its Subsidiaries to repurchase, redeem or otherwise acquire any
outstanding securities of any of its Subsidiaries or any capital stock of, or
other ownership interests in, any of its Subsidiaries.
SECTION 4.7 The ANFI SEC Documents.
(a) ANFI has made available to FNF the ANFI SEC Documents. ANFI has filed
all reports, filings, registration statements and other documents required to be
filed by it with the SEC since December 31, 2000. No Subsidiary of ANFI is
required to file any form, report, registration statement or prospectus or other
document with the SEC.
(b) As of its filing date, each ANFI SEC Document complied as to form in
all material respects with the applicable requirements of the Securities Act
and/or the Exchange Act, as the case may be.
(c) No ANFI SEC Document filed pursuant to the Exchange Act contained, as
of its filing date or mailing date, as applicable, any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading. No ANFI SEC Document filed pursuant to the Securities
Act, as amended or supplemented, if applicable, contained, as of the date such
document or amendment became effective, any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
SECTION 4.8 Financial Statements. The consolidated financial statements
included in the ANFI 10-K and the ANFI 10-Qs (the "ANFI GAAP Financial
Statements") fairly present in all material respects, in conformity with
generally accepted accounting principles applied on a consistent basis ("GAAP")
(except as may be indicated in the notes thereto and except that the unaudited
interim financial statements may lack footnotes), the consolidated financial
position of ANFI and its consolidated Subsidiaries as of the dates thereof and
their consolidated results of operations and cash flows for the periods then
ended (subject to normal year-end adjustments in the case of any unaudited
interim financial statements).
SECTION 4.9 No Material Undisclosed Liabilities. As of the date hereof
and except as set forth in Section 4.9 of the ANFI Disclosure Schedule, there
are no liabilities of ANFI or of any Subsidiary of ANFI of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or otherwise, in
each case, that are required by GAAP to be set forth on a consolidated balance
sheet of ANFI, other than:
(i) liabilities or obligations disclosed or provided for in the ANFI
GAAP Financial Statements or disclosed in the notes thereto; and
(ii) liabilities or obligations incurred or arising in the ordinary
course of business after the date of the ANFI balance sheet included in the
ANFI 10-Q relating to the quarter ended September 30, 2002 or arising under
this Agreement or incurred in connection with the transactions contemplated
hereby; and
(iii) other liabilities or obligations, which, individually or in the
aggregate, would not be reasonably likely to have an ANFI Material Adverse
Effect.
SECTION 4.10 Information to Be Supplied.
11
(a) The information to be supplied in writing by ANFI expressly for
inclusion or incorporation by reference in the Proxy Statement/Prospectus will
(i) in the case of the Registration Statement, at the time it becomes effective,
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 not misleading and (ii) in the case of the remainder of the
Proxy Statement/Prospectus, at the time of the mailing thereof and at the time
of the ANFI Shareholders Meeting, 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 Proxy Statement/Prospectus will
comply (with respect to information relating to ANFI) as to form in all material
respects with the provisions of the Securities Act and the Exchange Act.
(b) Notwithstanding the foregoing, ANFI makes no representation or warranty
with respect to any statements made or incorporated by reference in the Proxy
Statement/Prospectus based on information supplied in writing by FNF expressly
for use therein.
SECTION 4.11 Absence of Certain Changes. Since December 31, 2001, except
as disclosed in the ANFI SEC Documents, disclosed on Section 4.11 of the ANFI
Disclosure Schedule, or as contemplated by this Agreement, ANFI and its
Subsidiaries have conducted their business in the ordinary course consistent
with past practice and there has not been:
(a) any action, event, occurrence, development, change in method of
doing business, or state of circumstances or facts that, individually or in
the aggregate, has had or would be reasonably likely to have an ANFI
Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend or other
distribution with respect to any ANFI Common Shares (other than regular
quarterly cash dividends) or any repurchase, redemption or other
acquisition by ANFI or any of its Subsidiaries of any outstanding shares of
capital stock or other securities of, or other ownership interests in, ANFI
or any of its Subsidiaries (other than any repurchases of ANFI Common
Shares made prior to the date hereof pursuant to ANFI's publicly announced
stock repurchase programs);
(c) any transaction or commitment made by, or any contract, agreement
or settlement entered into by, or any judgment, order or decree to which
ANFI or any of its Subsidiaries is a party which relates to its assets or
business (including without limitation the acquisition or disposition of
any assets) or any relinquishment by ANFI or any of its Subsidiaries of any
contract or other right, in either case, material to ANFI and its
Subsidiaries taken as a whole, other than transactions, commitments,
contracts, agreements or settlements (including, without limitation,
settlements of litigation and tax proceedings) in the ordinary course of
business consistent with past practice, contemplated by this Agreement, or
agreed to in writing by FNF; or
(d) any change by ANFI in accounting principles or methods (other than
as required by GAAP or Regulation S-X of the Exchange Act).
SECTION 4.12 Transactions with Affiliates. Except as disclosed in the
ANFI Proxy Statement and except as contemplated hereby (including the ANFI
Disclosure Schedule), none of ANFI nor any of its Affiliates is an officer,
director, employee, consultant, distributor, supplier or vendor of, or is party
to any contract with, ANFI or any of its Subsidiaries that would be required to
be disclosed in a proxy statement filed by ANFI pursuant to the Exchange Act.
SECTION 4.13 Litigation. Except as disclosed in Section 4.13 of the ANFI
Disclosure Schedule, there is no action, suit, investigation, arbitration or
proceeding pending against, or to the Knowledge of ANFI threatened against, ANFI
or any of its Subsidiaries or any of their respective assets or properties
before any arbitrator or Governmental Entity that, individually or in the
aggregate, would be reasonably likely to result in liability to ANFI or such
Subsidiaries in excess of $100,000.
SECTION 4.14 Taxes. (a) All material tax returns, statements, reports and
forms (collectively, the "ANFI Returns") required to be filed with any taxing
authority by, or with respect to, ANFI and its
12
Subsidiaries were filed on a timely basis and were true, complete and correct
except to the extent that the failure to file or be true, complete and correct
would not, individually or in the aggregate, have an ANFI Material Adverse
Effect; (b) ANFI and its Subsidiaries have timely paid all material taxes (which
for purposes of this Section 4.14 shall include interest, penalties and
additions to tax with respect thereto) shown as due and payable on the ANFI
Returns (other than taxes which are being contested in good faith and for which
adequate reserves are reflected on the ANFI Balance Sheet) except to the extent
that the failure to pay would not, individually or in the aggregate, have an
ANFI Material Adverse Effect; (c) ANFI and its Subsidiaries have made provision
for all material taxes payable by them for which no ANFI Return has yet been
filed except for inadequately reserved taxes that would not, individually or in
the aggregate, have an ANFI Material Adverse Effect; (d) no taxing authority has
asserted or initiated (or, to the Knowledge of ANFI, threatened to assert or
initiate) in writing any action, suit, proceeding or claim against ANFI or any
of its Subsidiaries that, individually or in the aggregate, would have an ANFI
Material Adverse Effect; (e) there is no application pending for approval of a
change in accounting methods; (f) except as set forth in Section 4.14 of the
ANFI Disclosure Schedule or for any year for which the applicable statute of
limitations has expired, neither ANFI nor any of its Subsidiaries has been a
member of an affiliated, consolidated, combined or unitary group other than one
of which ANFI was the common parent; (g) except as set forth in Section 4.14 of
the ANFI Disclosure Schedule or for any year for which the applicable statute of
limitations has expired, neither ANFI nor any of its Subsidiaries is obligated
by any contract, agreement or other arrangement to indemnify any other person
with respect to taxes or to compensate any third party for any tax payment or
tax liability under a tax sharing or similar agreement; and (h) neither ANFI nor
any of its Subsidiaries has made any payments, is obligated to make any
payments, or is a party to any contract, agreement or other arrangement that
under any circumstances could obligate it to make any payments that will not be
deductible under Code Section 280G or 162(M).
SECTION 4.15 Employees and Employee Benefits.
(a) ANFI has made available to FNF each material "employee benefit plan,"
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974 ("ERISA"), each material employment, severance or similar contract, plan,
arrangement or policy and each other material plan or arrangement providing for
compensation, bonuses, profit-sharing, stock option or other stock related
rights or other forms of incentive or deferred compensation or insurance
coverage (including any self-insured arrangements and, if applicable, related
trust agreements), all amendments thereto and the most recent written summary
descriptions thereof, together with the most recent annual report (Form 5500
including, if applicable, Schedule B thereto) prepared in connection with any
such plan, which is maintained, administered or contributed to by ANFI or any of
its Subsidiaries and covers any employee or former employee of ANFI or any of
its Subsidiaries. Such plans are referred to collectively herein as the "ANFI
Employee Plans."
(b) Each ANFI Employee Plan which is intended to be qualified under Section
401(a) of the Code is so qualified and has received a favorable determination
letter from the Internal Revenue Service stating that it is so qualified and, to
the Knowledge of ANFI, nothing has occurred since the date of such letter that
would cause it to be revoked, whether prospectively or retroactively. ANFI will
make available upon request to FNF copies of the most recent Internal Revenue
Service determination letters with respect to each such ANFI Employee Plan. Each
ANFI Employee Plan has been administered in compliance with its terms and with
the requirements prescribed by any and all statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, which are
applicable to such ANFI Employee Plan except as would not be reasonably likely
to have an ANFI Material Adverse Effect.
(c) Except as described on Section 4.15(c) of the ANFI Disclosure Schedule
and, to the Knowledge of ANFI, the execution of, and performance of the
transactions contemplated in, this Agreement will not (either alone or upon the
occurrence of any additional or subsequent events) constitute an event under any
ANFI Employee Plan, employment or severance agreement to which ANFI or any of
its Subsidiaries is a party, trust or loan that will or may result in any
material payment (whether of severance pay or otherwise), acceleration,
forgiveness of indebtedness, vesting, distribution, increase in benefits or
obligation to fund benefits with respect to any current or former employee,
executive or director of ANFI or any of its Subsidiaries.
13
(d) Except as set forth on Section 4.15(a) of the ANFI Disclosure Schedule
and, to the Knowledge of ANFI, neither ANFI nor any of its Subsidiaries
maintains or contributes to any ANFI Employee Plan which provides, or has any
liability to provide, life insurance, medical or other welfare benefits to any
employee(s) upon their retirement or termination of employment, except as
required by Section 601 of ERISA and Section 4980B of the Code.
(e) To the Knowledge of ANFI, there has been no amendment to, written
interpretation or announcement (whether or not written) relating to any ANFI
Employee Plan which would increase materially the expense of maintaining such
ANFI Employee Plans in the aggregate above the level of the expense incurred in
respect thereof for the fiscal year ended December 31, 2001.
(f) To the Knowledge of ANFI, ANFI and each of its Subsidiaries is in
compliance with all applicable federal, state and local laws, rules and
regulations respecting employment, employment practices, terms and conditions of
employment, wages, hours and withholding except as would not be reasonably
likely to have an ANFI Material Adverse Effect.
SECTION 4.16 Compliance with Laws. ANFI and its Subsidiaries have all
licenses, permits and qualifications necessary to conduct their businesses and
own their properties in each jurisdiction in which ANFI or its Subsidiaries
currently do business or own property, or in which such license, permit or
qualification is otherwise required, except where the failure to have such
licenses, permits and qualifications would not have an ANFI Material Adverse
Effect. ANFI and its Subsidiaries have complied in all material respects with
all laws, regulations and orders applicable to their businesses and the present
use by ANFI and its Subsidiaries of their respective properties, and the
business conducted by ANFI and its Subsidiaries, does not violate in any
material respect any such laws, regulations or orders, and ANFI and its
Subsidiaries have timely filed all reports and returns required by law, rule,
regulation or policy of any regulatory authority and all such returns and
reports are true and correct in all material respects, and there are no material
deficiencies with respect to such filings or submissions, except where the
failure to so comply would not have an ANFI Material Adverse Effect.
SECTION 4.17 Directors' and Officers' Insurance Policies. Section 4.17 of
the ANFI Disclosure Schedule describes ANFI's directors' and officers' insurance
policies as in effect on the date hereof. ANFI has not received any notice of
cancellation or termination of such directors' and officers' insurance policy
and such insurance policy is valid and enforceable.
SECTION 4.18 Environmental Matters.
(a) With such exceptions as, individually or in the aggregate, would not be
reasonably likely to have an ANFI Material Adverse Effect, (i) no written
notice, notification, demand, request for information, citation, summons,
complaint or order has been received or made by, and no investigation, action,
claim, suit, proceeding or review is pending or, the Knowledge of ANFI,
threatened by any Person against, ANFI or any of its Subsidiaries, with respect
to any applicable Environmental Law, (ii) ANFI and its Subsidiaries are and have
been in compliance in all material respects with all applicable Environmental
Laws and (iii) there are no liabilities or obligations of ANFI or any of its
Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute,
direct or indirect, determined, determinable or otherwise, arising under or
relating to any Environmental Law (including, without limitation, liabilities or
obligations relating to divested properties or businesses or predecessor
entities), and there are no facts, conditions, situations or set of
circumstances that have resulted or could reasonably be expected to result in or
be the basis for any such liabilities or obligations which would have an ANFI
Material Adverse Effect.
(b) For purposes of this Agreement, the term "Environmental Laws" means any
international, national, provincial, regional, federal, state, local, municipal
and foreign statutes, laws (including, without limitation, common law), judicial
decisions, decrees, regulations, ordinances, rules, judgments, orders, codes,
injunctions, permits or governmental agreements or other requirements relating
to human health and safety, to the environment, including, without limitation,
natural resources, or to pollutants, contaminants, wastes, or chemicals,
petroleum products, by-products or additives, asbestos, asbestos-containing
material,
14
polychlorinated biphenyls, radioactive material, hazardous substances or wastes,
or any other substance (including any product) regulated as harmful or
potentially harmful to human health or the environment.
SECTION 4.19 Finders' Fees; Opinion of Financial Advisor.
(a) Except as set forth on Section 4.19 of the ANFI Disclosure Schedule,
there is no investment banker, broker, finder or other intermediary who might be
entitled to any fee or commission from ANFI, the Surviving Corporation or any of
their respective Affiliates in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of ANFI. Prior to
the date hereof, ANFI has provided to FNF true and correct information regarding
fees set forth on Section 4.19 of the ANFI Disclosure Schedule.
(b) ANFI has received the opinion, dated January 9, 2003, of Houlihan,
Lokey, ▇▇▇▇▇▇ & ▇▇▇▇▇ to the effect that, as of such date and subject to the
exceptions stated therein, the Merger Consideration was fair from a financial
point of view to the holders of ANFI Common Shares (other than FNF and its
Affiliates), a copy of which opinion has been made available to FNF.
SECTION 4.20 Required Vote; Board Approval.
(a) The only vote of the holders of any class or series of capital stock of
ANFI required by law, rule or regulation to approve this Agreement, the Merger
and/or any of the other transactions contemplated hereby is the affirmative vote
(the "ANFI Shareholder Approval") of the holders of a majority of the
outstanding ANFI Common Shares in favor of the adoption and approval of this
Agreement and the Merger.
(b) ANFI's Board of Directors has (a) determined that this Agreement and
the transactions contemplated hereby, including the Merger, are in the best
interests of ANFI and its shareholders, (b) approved this Agreement and the
transactions contemplated hereby and (c) resolved (subject to Section 6.2) to
recommend to such shareholders that they vote in favor of adopting and approving
this Agreement and the Merger in accordance with the terms hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF FNF AND MERGER SUB
Except as disclosed in (i) the FNF Disclosure Schedule attached hereto or
(ii) the FNF SEC Documents filed prior to the date hereof, FNF and Merger Sub
jointly and severally represent and warrant to ANFI that:
SECTION 5.1 Corporate Existence and Power. Each of FNF and Merger Sub is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and the State of
California, respectively, and has
all corporate powers required to carry on its business as now conducted. Each of
FNF and Merger Sub is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction where the character of the property
owned or leased by it or the nature of its activities makes such qualification
necessary, except where the failure to be so qualified would not, individually
or in the aggregate, have a FNF Material Adverse Effect. FNF has heretofore made
available to ANFI true and complete copies of FNF's certificate of incorporation
and by-laws as currently in effect. Merger Sub has heretofore made available to
ANFI true and complete copies of Merger Sub's articles of incorporation and by-
laws as currently in effect.
SECTION 5.2 Corporate Authorization. The execution, delivery and
performance by FNF and Merger Sub of this Agreement and the consummation by FNF
and Merger Sub of the transactions contemplated hereby are within the respective
corporate powers of FNF and Merger Sub and have been duly authorized by all
necessary corporate action. Assuming that this Agreement constitutes the valid
and binding obligation of ANFI, this Agreement constitutes a valid and binding
agreement of FNF and Merger Sub, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and similar laws,
now or hereafter in effect, relating to or affecting creditors' rights and
remedies and to general principles of equity.
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SECTION 5.3 Governmental Authorization. The execution, delivery and
performance by FNF and Merger Sub of this Agreement, and the consummation by FNF
and Merger Sub of the transactions contemplated hereby require no action by or
in respect of, or filing with, any Governmental Entity other than (a) the filing
of the Agreement of Merger in accordance with the GCL; (b) compliance with any
applicable requirements of the HSR Act; (c) compliance with any applicable
requirements of the Securities Act and the Exchange Act; (d) such as may be
required under any applicable state securities or "blue sky" laws; (e) filings
listed on Section 5.3(e) of the FNF Disclosure Schedule; (f) compliance with any
applicable Environmental Laws or state environmental property transfer laws; and
(g) such other consents, approvals, actions, orders, authorizations,
registrations, declarations and filings which, if not obtained or made, would
not, individually or in the aggregate, (i) be reasonably likely to have a FNF
Material Adverse Effect, or (ii) prevent or materially impair the ability of FNF
or Merger Sub to consummate the transactions contemplated by this Agreement.
SECTION 5.4 Non-Contravention. Except as set forth on Section 5.4 of the
FNF Disclosure Schedule, the execution, delivery and performance by FNF and
Merger Sub of this Agreement and the consummation by FNF and Merger Sub of the
transactions contemplated hereby do not and will not (a) contravene or conflict
with the certificate of incorporation or by-laws of FNF, (b) contravene or
conflict with the articles of incorporation or by-laws of Merger Sub, (c)
assuming compliance with the matters referred to in Section 5.3, contravene or
conflict with or constitute a violation of any provision of any law, regulation,
judgment, injunction, order or decree binding upon or applicable to FNF, Merger
Sub or any of FNF's Subsidiaries, (d) constitute a breach or default under or
give rise to a right of termination, cancellation or acceleration of any right
or obligation of FNF, Merger Sub or any of FNF's Subsidiaries or to a loss of
any benefit or status to which FNF, Merger Sub or any of its Subsidiaries is
entitled under any provision of any agreement, contract or other instrument
binding upon FNF, Merger Sub or any of FNF's Subsidiaries or any license,
franchise, permit or other similar authorization held by FNF, Merger Sub or any
of FNF's Subsidiaries, or (e) result in the creation or imposition of any Lien
on any asset of FNF, Merger Sub or any of FNF's Subsidiaries other than, in the
case of each of (c), (d) and (e), any such items that would not, individually or
in the aggregate, (x) be reasonably likely to have a FNF Material Adverse Effect
or (y) prevent or materially impair the ability of FNF or Merger Sub to
consummate the transactions contemplated by this Agreement.
SECTION 5.5 Capitalization of FNF and Merger Sub.
(a) The authorized capital stock of FNF consists of 150,000,000 FNF Common
Shares, and 3,000,000 shares of preferred stock, $0.0001 par value per share. As
of January 7, 2003, there were outstanding (i) 97,218,929 FNF Common Shares,
(ii) no shares of FNF preferred stock, (iii) no convertible debt securities
convertible for FNF Common Shares, (iv) stock options to purchase an aggregate
of 9,307,974 FNF Common Shares (of which options to purchase an aggregate of
7,175,151 FNF Common Shares were vested and exercisable), and (v) rights to
purchase FNF Common Shares pursuant to the FNF Employee Stock Purchase Plan. All
outstanding shares of capital stock of FNF have been duly authorized and validly
issued and are fully paid and nonassessable.
(b) As of the date hereof, except (i) as set forth in this Section, (ii)
for changes since January 7, 2003 resulting from the grant of stock options
under FNF Employee Plans in the ordinary course of business consistent with past
practice and the exercise of stock options outstanding on such date and (iii)
for issuances of FNF Common Shares since January 7, 2003 pursuant to FNF's
Employee Stock Purchase Plan in accordance with its present terms, there are no
outstanding (x) shares of capital stock or other voting securities of FNF, (y)
securities of FNF convertible into or exchangeable for shares of capital stock
or voting securities of FNF, and (z) options or other rights to acquire from
FNF, and no obligation of FNF to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of FNF (the items in clauses (x), (y) and (z) being referred to
collectively as the "FNF Securities"). There are no outstanding obligations of
FNF, Merger Sub or any of FNF's Subsidiaries to repurchase, redeem or otherwise
acquire any FNF Securities.
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(c) The FNF Common Shares to be issued as part of the Merger Consideration
have been duly authorized and, when issued and delivered in accordance with the
terms of this Agreement, will have been validly issued, fully paid and
nonassessable and free of any preemptive or other similar right.
(d) The authorized capital stock of Merger Sub consists of 1000 shares of
Merger Sub common stock, no par value per share. As of January 9, 2003, there
were outstanding 100 shares of Merger Sub common stock. All outstanding shares
of capital stock of Merger Sub have been duly authorized and validly issued and
are fully paid and nonassessable.
SECTION 5.6 Subsidiaries.
(a) Each Subsidiary of FNF is a corporation duly incorporated or an entity
duly organized, and is validly existing and in good standing, under the laws of
its jurisdiction of incorporation or organization, has all powers and authority
and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, in each case with such exceptions
as, individually or in the aggregate, would not be reasonably likely to have a
FNF Material Adverse Effect.
(b) All of the outstanding shares of capital stock of, or other ownership
interest in, each Subsidiary of FNF has been validly issued and is fully paid
and nonassessable. All of the outstanding capital stock of, or other ownership
interest, which is owned, directly or indirectly, by FNF in, each of its
Subsidiaries is owned free and clear of any Lien and free of any other
limitation or restriction (including any limitation or restriction on the right
to vote, sell or otherwise dispose of such capital stock or other ownership
interests) with such exceptions as, individually or in the aggregate, would not
be reasonably likely to have a FNF Material Adverse Effect. There are no
outstanding (i) securities of FNF, Merger Sub or any of FNF's Subsidiaries
convertible into or exchangeable or exercisable for shares of capital stock or
other voting securities or ownership interests in any of FNF's Subsidiaries,
(ii) options, warrants or other rights to acquire from FNF, Merger Sub or any of
FNF's Subsidiaries, and no other obligation of FNF, Merger Sub or any of FNF's
Subsidiaries to issue, any capital stock, voting securities or other ownership
interests in, or any securities convertible into or exchangeable or exercisable
for any capital stock, voting securities or ownership interests in, any of its
Subsidiaries or (iii) obligations of FNF, Merger Sub or any of FNF's
Subsidiaries to repurchase, redeem or otherwise acquire any outstanding
securities of any of its Subsidiaries or any capital stock of, or other
ownership interests in, any of its Subsidiaries.
SECTION 5.7 FNF SEC Documents.
(a) FNF has made available to ANFI the FNF SEC Documents. FNF has filed all
reports, filings, registration statements and other documents required to be
filed by it with the SEC since December 31, 2000. No Subsidiary of FNF is
required to file any form, report, registration statement or prospectus or other
document with the SEC.
(b) As of its filing date, each FNF SEC Document complied as to form in all
material respects with the applicable requirements of the Securities Act and/or
the Exchange Act, as the case may be.
(c) No FNF SEC Document filed pursuant to the Exchange Act contained, as of
its filing date or mailing date, as applicable, any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading. No FNF SEC Document filed pursuant to the Securities
Act, as amended or supplemented, if applicable, contained, as of the date such
document or amendment became effective, any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading.
SECTION 5.8 Financial Statements. The consolidated financial statements of
FNF included in the FNF 10-K and FNF 10-Qs (the "FNF GAAP Financial Statements")
fairly present in all material respects, in conformity with GAAP (except as may
be indicated in the notes thereto and except that the unaudited interim
financial statements may lack footnotes), the consolidated financial position of
FNF and its
17
consolidated Subsidiaries as of the dates thereof and their consolidated results
of operations and cash flows for the periods then ended (subject to normal
year-end adjustments in the case of any unaudited interim financial statements).
SECTION 5.9 No Material Undisclosed Liabilities. As of the date hereof and
except as set forth in Section 5.9 of the FNF Disclosure Schedule, there are no
liabilities of FNF, Merger Sub or of any Subsidiary of FNF of any kind
whatsoever, whether accrued, contingent, absolute, determined, determinable or
otherwise, in each case, that are required by GAAP to be set forth on a
consolidated balance sheet of FNF, other than:
(i) liabilities or obligations disclosed or provided for in the FNF
GAAP Financial Statements or disclosed in the notes thereto;
(ii) liabilities or obligations incurred or arising in the ordinary
course of business after the date of the FNF balance sheet included in the
FNF 10-Q relating to the quarter ended September 30, 2002 or arising under
this Agreement or incurred in connection with the transactions contemplated
hereby; and
(iii) other liabilities or obligations, which, individually or in the
aggregate, would not be reasonably likely to have a FNF Material Adverse
Effect.
SECTION 5.10 Information to Be Supplied.
(a) The information to be supplied in writing by FNF or Merger Sub
expressly for inclusion or incorporation by reference in the Proxy
Statement/Prospectus will (i) in the case of the Registration Statement, at the
time it becomes effective, 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 not misleading and (ii) in the case of the
remainder of the Proxy Statement/Prospectus, at the time of the mailing thereof
and at the time of the ANFI Shareholders Meeting, 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 Proxy
Statement/Prospectus will comply (with respect to information relating to FNF or
Merger Sub) as to form in all material respects with the provisions of the
Securities Act and the Exchange Act.
(b) Notwithstanding the foregoing, FNF and Merger Sub make no
representation or warranty with respect to any statements made or incorporated
by reference in the Proxy Statement/Prospectus based on information supplied in
writing by ANFI expressly for use therein.
SECTION 5.11 Absence of Certain Changes. Since December 31, 2001, except
as disclosed in the FNF SEC Documents, disclosed on Section 5.11 of the FNF
Disclosure Schedule, or as contemplated by this Agreement, FNF, Merger Sub and
FNF's Subsidiaries have conducted their business in the ordinary course
consistent with past practice and there has not been any action taken by FNF
that, individually or in the aggregate, has had or would be reasonably likely to
have a FNF Material Adverse Effect.
SECTION 5.12 Transactions with Affiliates. Except as disclosed in the FNF
Proxy Statement, none of FNF or any of its Affiliates is an officer, director,
employee, consultant, distributor, supplier or vendor of, or is party to any
contract with, FNF, Merger Sub or any of FNF's Subsidiaries that would be
required to be disclosed in a proxy statement filed by FNF pursuant to the
Exchange Act.
SECTION 5.13 Litigation. Except as disclosed in Section 5.13 of the FNF
Disclosure Schedule or in the FNF SEC Documents, there is no action, suit,
investigation, arbitration or proceeding pending against, or to the Knowledge of
FNF or Merger Sub threatened against, FNF, Merger Sub or any of FNF's
Subsidiaries or any of their respective assets or properties before any
arbitrator or Governmental Entity that, individually or in the aggregate, would
be reasonably likely to result in a FNF Material Adverse Effect.
SECTION 5.14 Compliance with Laws. FNF, Merger Sub and FNF's Subsidiaries
have all licenses, permits and qualifications necessary to conduct their
businesses or own their properties in each jurisdiction in which FNF, Merger Sub
or FNF's Subsidiaries currently do business or own property, or in which such
license, permit or qualification is otherwise required, except where the failure
to have such licenses, permits
18
and qualifications would not have a FNF Material Adverse Effect. Except as
disclosed on Section 5.14 of the FNF Disclosure Schedule, FNF, Merger Sub and
FNF's Subsidiaries have complied in all material respects with all laws,
regulations and orders applicable to their businesses and the present use by
FNF, Merger Sub and FNF's Subsidiaries of their respective properties, and the
business conducted by FNF, Merger Sub and FNF's Subsidiaries, does not violate
in any material respect any such laws, regulations or orders, and FNF, Merger
Sub and FNF's Subsidiaries have timely filed all reports and returns required by
law, rule, regulation or policy of any regulatory authority and all such returns
and reports are true and correct in all material respects, and there are no
material deficiencies with respect to such filings or submissions, except where
the failure to so comply would not have a FNF Material Adverse Effect.
SECTION 5.15 Finders' Fees; Opinion of Financial Advisor. There is no
investment banker, broker, finder or other intermediary who might be entitled to
any fee or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of FNF or Merger Sub.
SECTION 5.16 Required Vote; Board Approval.
(a) There is no vote of the holders of any class or series of capital stock
of FNF required by law, rule or regulation to approve this Agreement, the Merger
and/or any of the other transactions contemplated hereby; subject to the
accuracy of the capitalization representation set forth in Section 4.5 and
ANFI's compliance with the covenant set forth in Section 6.1(d) .
(b) FNF's Board of Directors has (a) determined that this Agreement and the
transactions contemplated hereby, including the Merger, are in the best
interests of FNF and its stockholders and (b) approved this Agreement and the
transactions contemplated hereby.
SECTION 5.17 Taxes. (a) All material tax returns, statements, reports and
forms (collectively, the "FNF Returns") required to be filed with any taxing
authority by, or with respect to, FNF and its Subsidiaries were filed on a
timely basis and were true, complete and correct except to the extent that the
failure to file or be true, complete and correct would not, individually or in
the aggregate, have a FNF Material Adverse Effect; (b) FNF and its Subsidiaries
have timely paid all material taxes (which for purposes of this Section 5.17
shall include interest, penalties and additions to tax with respect thereto)
shown as due and payable on the FNF Returns (other than taxes which are being
contested in good faith and for which adequate reserves are reflected on the FNF
Balance Sheet) except to the extent that the failure to pay would not,
individually or in the aggregate, have a FNF Material Adverse Effect; (c) FNF
and its Subsidiaries have made provision for all material taxes payable by them
for which no FNF Return has yet been filed except for inadequately reserved
taxes that would not, individually or in the aggregate, have a FNF Material
Adverse Effect; (d) no taxing authority has asserted or initiated (or, to the
Knowledge of FNF or Merger Sub, threatened to assert or initiate) in writing any
action, suit, proceeding or claim against FNF or any of its Subsidiaries that,
individually or in the aggregate, would have a FNF Material Adverse Effect; (e)
there is no application pending for approval of a change in accounting methods;
(f) except as set forth in Section 5.17 of the FNF Disclosure Schedule or for
any year for which the applicable statute of limitations has expired, neither
FNF nor any of its Subsidiaries has been a member of an affiliated,
consolidated, combined or unitary group other than one of which FNF was the
common parent; and (g) except as set forth in Section 5.17 of the FNF Disclosure
Schedule or for any year for which the applicable statute of limitations has
expired, neither FNF nor any of its Subsidiaries is obligated by any contract,
agreement or other arrangement to indemnify any other person with respect to
taxes or to compensate any third party for any tax payment or tax liability
under a tax sharing or similar agreement.
SECTION 5.18 Employees and Employee Benefits.
(a) Each of FNF and Merger Sub has made available to ANFI each material
"employee benefit plan," as defined in Section 3(3) of ERISA, each material
employment, severance or similar contract, plan, arrangement or policy and each
other material plan or arrangement providing for compensation, bonuses,
profit-sharing, stock option or other stock related rights or other forms of
incentive or deferred compensation or insurance coverage (including any
self-insured arrangements and, if applicable, related trust agreements),
19
all amendments thereto and the most recent written summary descriptions thereof,
together with the most recent annual report (Form 5500 including, if applicable,
Schedule B thereto) prepared in connection with any such plan, which is
maintained, administered or contributed to by FNF, Merger Sub or any of FNF's
Subsidiaries and covers any employee or former employee of FNF, Merger or any of
FNF's Subsidiaries. Such plans are referred to collectively herein as the "FNF
Employee Plans."
(b) Each FNF Employee Plan which is intended to be qualified under Section
401(a) of the Code is so qualified and has received a favorable determination
letter from the Internal Revenue Service stating that it is so qualified and,
nothing has occurred since the date of such letter that would cause it to be
revoked, whether prospectively or retroactively. FNF will make available upon
request to ANFI copies of the most recent Internal Revenue Service determination
letters with respect to each such FNF Employee Plan. Each FNF Employee Plan has
been administered in compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations, including but
not limited to ERISA and the Code, which are applicable to such FNF Employee
Plan except as would not be reasonably likely to have a FNF Material Adverse
Effect.
(c) Except as described on Section 5.18(c) of the FNF Disclosure Schedule,
the execution of, and performance of the transactions contemplated in, this
Agreement will not (either alone or upon the occurrence of any additional or
subsequent events) constitute an event under any FNF Employee Plan, trust or
loan that will or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any current
or former employee, executive or director of FNF or any of its Subsidiaries
which would have a FNF Material Adverse Effect.
(d) Except as set forth on Section 5.18(a) of the FNF Disclosure Schedule,
neither FNF nor any of its Subsidiaries maintains or contributes to any FNF
Employee Plan which provides, or has any liability to provide, life insurance,
medical or other welfare benefits to any employee(s) upon their retirement or
termination of employment, except as required by Section 601 of ERISA and
Section 4980B of the Code.
(e) There has been no amendment to, written interpretation or announcement
(whether or not written) relating to any FNF Employee Plan which would increase
materially the expense of maintaining such FNF Employee Plans in the aggregate
above the level of the expense incurred in respect thereof for the fiscal year
ended December 31, 2001.
(f) FNF and each of its Subsidiaries is in compliance with all applicable
federal, state and local laws, rules and regulations respecting employment,
employment practices, terms and conditions of employment, wages, hours and
withholding except as would not be reasonably likely to have a FNF Material
Adverse Effect.
SECTION 5.19 Environmental Matters.
(a) With such exceptions as, individually or in the aggregate, would not be
reasonably likely to have a FNF Material Adverse Effect, (i) no written notice,
notification, demand, request for information, citation, summons, complaint or
order has been received or made by, and no investigation, action, claim, suit,
proceeding or review is pending or, the Knowledge of FNF, threatened by any
Person against, FNF or any of its Subsidiaries, with respect to any applicable
Environmental Law, (ii) FNF and its Subsidiaries are and have been in compliance
in all material respects with all applicable Environmental Laws and (iii) there
are no liabilities or obligations of FNF or any of its Subsidiaries of any kind
whatsoever, whether accrued, contingent, absolute, direct or indirect,
determined, determinable or otherwise, arising under or relating to any
Environmental Law (including, without limitation, liabilities or obligations
relating to divested properties or businesses or predecessor entities), and
there are no facts, conditions, situations or set of circumstances that have
resulted or could reasonably be expected to result in or be the basis for any
such liabilities or obligations which would have a FNF Material Adverse Effect.
SECTION 5.20 Shareholder Consent. FNF's vote as the sole shareholder of
Merger Sub is the only vote required of any class or series of capital stock of
Merger Sub required by law, rule, regulation to approve this Agreement, the
Merger and/or any of the other transactions contemplated hereby.
20
SECTION 5.21 Assets and Liabilities. Merger Sub is a newly-formed,
wholly-owned subsidiary of FNF. FNF formed Merger Sub on January 8, 2003 solely
to effect the Merger. Merger Sub has not conducted any business during any
period of its existence and does not and will not as of the Closing have any
assets or liabilities.
ARTICLE VI
COVENANTS OF ANFI
ANFI agrees that:
SECTION 6.1 ANFI Interim Operations. Except as set forth in the ANFI
Disclosure Schedule or as otherwise expressly contemplated hereby, without the
prior consent of FNF (which consent shall not be unreasonably withheld or
delayed), from the date hereof until the Effective Time, ANFI shall, and shall
cause each of its Subsidiaries to, conduct their business in all material
respects in the ordinary course consistent with past practice and shall use
commercially reasonable efforts to (i) preserve intact its present business
organization, (ii) maintain in effect all material licenses, approvals and
authorizations, including, without limitation, all material licenses and permits
that are required by applicable Laws and Environmental Laws for ANFI or any of
its Subsidiaries to carry on its business and (iii) preserve existing
relationships with its key employees, its key agents, and its material
customers, lenders, suppliers and others having material business relationships
with it. Without limiting the generality of the foregoing, except as set forth
in Section 6.1 of the ANFI Disclosure Schedule or as otherwise expressly
contemplated by this Agreement, from the date hereof until the Effective Time,
without the prior consent of FNF (which consent shall not be unreasonably
withheld or delayed), ANFI shall not, nor shall it permit any of its
Subsidiaries to:
(a) amend its articles of incorporation or by-laws;
(b) take any action that would prevent or materially impair the
ability of ANFI to consummate the transactions contemplated by this
Agreement, including actions that would be reasonably likely to prevent or
materially impair the ability of ANFI, FNF or any of their Subsidiaries to
obtain any consent, registration, approval, permit or authorization
required to be obtained from any Governmental Entity prior to the Effective
Time in connection with the execution and delivery of this Agreement and
the consummation of the Merger and the other transactions contemplated by
this Agreement;
(c) split, combine or reclassify any shares of capital stock of ANFI
or any less-than-wholly-owned Subsidiary of ANFI or declare, set aside or
pay any dividend or other distribution (whether in cash, stock or property
or any combination thereof) in respect of its capital stock or any
securities of any of its Subsidiaries which are not wholly-owned, or
redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or
otherwise acquire any of its securities or any securities of any of its
Subsidiaries which are not wholly-owned;
(d) (i) issue, deliver or sell, or authorize the issuance, delivery or
sale of, any shares of its capital stock of any class or any securities
convertible into or exercisable for, or any rights, warrants or options to
acquire, any such capital stock or any such convertible securities, other
than (A) the issuance of ANFI Common Shares upon the exercise of stock
options, (B) pursuant to an ANFI Employee Plan in accordance with its
present terms, (C) the issuance of stock options in the ordinary course of
business pursuant to an ANFI Employee Plan in accordance with its present
terms; provided, however, that ANFI shall not grant stock options which
would result in the acceleration of any options not assumed by FNF and that
the issuance of any such stock options is with the prior written consent of
FNF, and (D) as permitted pursuant to Section 3.4(d); provided, further,
that in no event shall the aggregate of any and all issuances pursuant to
subsections (B), (C) or (D) be in excess of the lesser of 654,000 shares of
capital stock of ANFI and/or securities convertible into or exercisable for
capital stock of ANFI and such amount as would require FNF to obtain from
its stockholders approval of this Agreement and the transactions
contemplated hereby, pursuant to the rules and regulations promulgated by
the NYSE, (ii) except as permitted in Section 3.4(e), amend in any material
respect any material term of any
21
outstanding security of ANFI or any of its Subsidiaries or (iii) consent,
including consent by the applicable committee, to any transfer of an ANFI
Option;
(e) other than in connection with transactions permitted by Section
6.1(f) and expenses incurred in connection with this transaction such as
reasonable legal and accounting expenses, and investment banking expenses,
not to exceed the amount disclosed in Section 4.19 of the ANFI Disclosure
Schedule, incur any capital expenditures or any obligations or liabilities
in respect thereof, except for those (i) contemplated by the capital
expenditure budgets for ANFI and its Subsidiaries, (ii) incurred in the
ordinary course of business of ANFI and its Subsidiaries, or (iii) not
otherwise described in clauses (i) and/or (ii) which are not in excess of
an aggregate of $100,000;
(f) except for acquisitions in the ordinary course of the investment
activities of ANFI and its Subsidiaries consistent with past practice,
acquire (whether pursuant to merger, stock or asset purchase or otherwise)
in one transaction or series of related transactions any assets of or
equity interests in any Person having a fair market value in excess of
$100,000;
(g) sell, lease, encumber or otherwise dispose of any assets, other
than (i) in the ordinary course of business consistent with past practice,
(ii) equipment and property no longer used in the operation of ANFI's
business, and (iii) sales or other dispositions of assets related to
discontinued operations of ANFI or any of its Subsidiaries;
(h) incur any indebtedness for borrowed money or guarantee any such
indebtedness or issue or sell any debt securities or warrants or rights to
acquire any debt securities of ANFI or any of its Subsidiaries or guarantee
any debt securities of others or request any advances in respect of, or
make any drawdowns on, any existing indebtedness which advance or drawdown
exceeds $100,000 individually or $250,000 in the aggregate;
(i) amend, modify or terminate any material contract, agreement or
arrangement of ANFI or any of its Subsidiaries or otherwise waive, release
or assign any material rights, claims or benefits of ANFI or any of its
Subsidiaries thereunder;
(j) (i) except as set forth in Section 7.1(c) hereof, in the ordinary
course of business consistent with past practice, or as required by law or
by an agreement existing on the date hereof, increase the amount of
compensation of any director or executive officer or make any increase in
or commitment to increase any employee benefits, (ii) except as required by
law or by an agreement existing on the date hereof, adopt any severance
program or grant any material severance or termination pay to any director,
officer or employee of ANFI or any of its Subsidiaries, (iii) adopt or
implement any employee retention program or other incentive arrangement not
in existence on the date hereof, (iv) except as set forth in Section 7.1(c)
hereof, adopt any additional employee benefit plan or, except in the
ordinary course of business, make any material contribution to any existing
plan (other than as required by law or such plan), or (v) except as may be
required by law or pursuant to any agreement existing on the date hereof,
amend in any material respect any ANFI Employee Plan;
(k) change ANFI's (x) methods of accounting in effect at December 31,
2001, except as required by changes in GAAP or by Regulation S-X of the
Exchange Act, as concurred in by its independent public accountants or (y)
fiscal year;
(l) other than in the ordinary course of business consistent with past
practice, make any tax election or enter into any settlement or compromise
of any tax liability that in either case is material to the business of
ANFI and its Subsidiaries, taken as a whole;
(m) pay, discharge, settle or satisfy any claim, liability or
obligation (absolute, accrued, asserted or unasserted, contingent or
otherwise) other than (y) for an amount of $100,000 or less, or (z)
ordinary course repayment of indebtedness or payment of contractual
obligations when due;
(n) take any action that would cause any of its representations and
warranties herein to become untrue in any material respect; and
22
(o) agree, resolve or otherwise commit to do any of the foregoing.
SECTION 6.2 Shareholder Meeting. ANFI shall cause a meeting of its
shareholders (the "ANFI Shareholders Meeting") to be duly called and held for
the purpose of obtaining the ANFI Shareholder Approval (including the payment of
any severance payments subject to the application of Section 280G of the Code,
if any) as soon as reasonably practicable after the Registration Statement is
declared effective under the Securities Act. Except as provided in Section 6.3,
(a) ANFI's Board of Directors shall recommend approval and adoption by its
shareholders of this Agreement (the "ANFI Recommendation"), and (b) ANFI shall
use commercially reasonable efforts to solicit the ANFI Shareholder Approval.
Without limiting the generality of the foregoing, ANFI agrees that its
obligations under this Section shall not be affected by the commencement, public
proposal, public disclosure or communication to ANFI of any Acquisition
Proposal.
SECTION 6.3 Acquisition Proposals; Board Recommendation.
(a) ANFI agrees that it shall not, nor shall it permit any of its
Subsidiaries to, nor shall it authorize or knowingly permit any officer,
director, employee, investment banker, attorney, accountant, agent or other
advisor or representative of ANFI or any of its Subsidiaries, directly or
indirectly, to (i) take any action to solicit, initiate or facilitate or
encourage the submission of any Acquisition Proposal, (ii) engage in any
negotiations regarding, or furnish to any Person any non-public information with
respect to, or take any other action knowingly to facilitate any inquiries or
the making of any proposal that constitutes, or may be reasonably expected to
lead to, any Acquisition Proposal, (iii) grant any waiver or release under any
standstill or similar agreement with respect to any class of ANFI's equity
securities or (iv) other than in the manner contemplated by Section 6.3(d),
enter into any agreement with respect to any Acquisition Proposal; provided,
however, that ANFI may take any actions described in the foregoing clauses (i),
(ii), (iii), or (iv) in respect of any Person who makes an Acquisition Proposal,
but only if (x) the Board of Directors of ANFI by a majority vote determines in
its good faith judgment that either (A) such Acquisition Proposal constitutes a
Superior Proposal and provides written notice of termination of this Agreement
in accordance with Section 6.3(d) and Section 10.1, or (B) such Acquisition
Proposal could reasonably be expected to result in a Superior Proposal, and (y)
prior to furnishing any non-public information to such Person, such Person shall
have entered into a confidentiality agreement with ANFI agreeing to keep
confidential any non-public information received.
(b) Until this Agreement shall have been terminated pursuant to Section
6.3(d), neither ANFI's Board of Directors nor any committee thereof shall
recommend any Acquisition Proposal to ANFI's shareholders. Notwithstanding the
foregoing, nothing contained in this Section 6.3(b) or elsewhere in this
Agreement shall prevent ANFI's Board of Directors from complying with Rule 14e-2
under the Exchange Act with respect to any Acquisition Proposal or making any
disclosure required by applicable law.
(c) Promptly (but in no event later than 48 hours) after receipt by ANFI or
any of its Subsidiaries (or any of their respective directors, officers, agents
or advisors) of any Acquisition Proposal, any request for non-public information
or for access to the properties, books or records of ANFI or any of its
Subsidiaries or any request for a waiver or release under any standstill or
similar agreement, by any Person that has made an Acquisition Proposal or
indicates that it is considering making an Acquisition Proposal, ANFI shall
notify FNF (x) that a Person may be considering making an Acquisition Proposal,
and (y) of the identity of such Person and, if an Acquisition Proposal is made,
of the material terms of such Acquisition Proposal. ANFI shall keep FNF
reasonably informed of the status and material terms of any such Acquisition
Proposal.
(d) Upon notice and in accordance with the terms of Section 10.1, ANFI may
terminate this Agreement at any time before the ANFI Shareholder Approval is
obtained if (x) ANFI's Board of Directors shall have authorized ANFI, subject to
the terms and conditions of this Agreement, to enter into a binding agreement
concerning a transaction that constitutes a Superior Proposal, (y) ANFI notifies
FNF that it intends to enter into such agreement, specifying the material terms
and conditions of such agreement, and (z) within seven Business Days of
receiving the notice described in (y) above, FNF fails to propose and agree to
enter into a modification of this Agreement such that the Board of Directors of
ANFI determines by a majority vote in its good faith judgment that such
Acquisition Proposal previously determined to constitute a Superior Proposal is
no longer a Superior Proposal.
23
SECTION 6.4 New Employment Agreements. On or before January 20, 2003, ANFI
shall have entered into a modification to each of the employment agreements with
each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇, with respect
to the matters set forth on Exhibit A attached hereto.
SECTION 6.5 Registration Rights. ANFI covenants to use commercially
reasonable efforts to cause the holder of the ANFI Warrants to relinquish any
demand registration rights which such holder may have.
ARTICLE VII
COVENANTS OF FNF
FNF agrees that:
SECTION 7.1 Indemnification, Exculpation and Insurance.
(a) FNF agrees to maintain in effect in accordance with their terms all
rights to indemnification and exculpation from liabilities for acts or omissions
occurring at or prior to the Effective Time now existing in favor of the current
or former directors or officers of ANFI and its Subsidiaries as provided in
their respective articles of incorporation or by-laws (or comparable
organizational documents) and any indemnification agreements of ANFI. In
addition, from and after the Effective Time, directors and officers of ANFI who
become directors or officers of FNF will be entitled to the same indemnity
rights and protections as are afforded to other directors and officers of FNF.
(b) In the event that FNF or any of its successors or assigns (i)
consolidates with or merges into any other person and is not the continuing or
surviving corporation or entity of such consolidation or merger or (ii) except
as required by applicable law in connection with the Merger, transfers or
conveys all or substantially all of its properties and assets to any person,
then, and in each such case, proper provision will be made so that the
successors and assigns of FNF assume the obligations set forth in this Section.
(c) Immediately prior to the Closing, ANFI shall purchase, from an insurer
or insurers chosen by ANFI, one or more single payment, run-off policies of
directors and officers liability insurance covering acts or omissions occurring
prior to the Effective Time with respect to those persons who are currently
covered by ANFI's directors' and officers' liability insurance policies on terms
with respect to such coverage and amount no less favorable than the terms of the
current policies of ANFI which policies are described on Section 4.17 of the
ANFI Disclosure Schedule, such policy (or policies) to become effective at the
Effective Time and to remain in effect for a period of six years after the
Effective Time; provided, however, prior to purchasing such insurance, ANFI
shall have consulted with FNF to determine whether FNF can obtain such coverage
on more favorable terms. If such coverage is unavailable, for six years after
the Effective Time, FNF shall provide to ANFI's directors and officers liability
insurance covering acts or omissions occurring prior to the Effective Time with
respect to those persons who are currently covered by ANFI's directors' and
officers' liability insurance policies with insurance companies who are rated at
least as highly as the insurance companies who currently provide ANFI's
directors' and officers' liability insurance as described on Section 4.17 of the
ANFI Disclosure Schedule and on terms with respect to such coverage and amount
no less favorable than those described on Section 4.17 of the ANFI Disclosure
Schedule.
SECTION 7.2 Stock Exchange Listing. FNF shall use its commercially
reasonable efforts to cause the FNF Common Shares to be issued in connection
with the Merger or upon exercise of FNF Options to be listed on the NYSE,
subject to official notice of issuance.
SECTION 7.3 Merger Sub Shareholder Consent. FNF as the sole shareholder of
Merger Sub will provide written consent adopting and approving the Agreement and
the Merger in accordance with the terms hereof.
24
ARTICLE VIII
COVENANTS OF FNF, MERGER SUB AND ANFI
The parties hereto agree that:
SECTION 8.1 Commercially Reasonable Efforts. Subject to the terms and
conditions hereof, the parties will use commercially reasonable efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate the transactions contemplated by this Agreement as promptly as
practicable after the date hereof, including (i) preparing and filing as
promptly as practicable all documentation to effect all necessary applications,
notices, petitions, filings, tax ruling requests and other documents and to
obtain as promptly as practicable all consents, waivers, licenses, orders,
registrations, approvals, permits, tax rulings and authorizations necessary or
advisable to be obtained from any third party and/or any Governmental Entity in
order to consummate the Merger or any of the other transactions contemplated by
this Agreement and (ii) taking all reasonable steps as may be necessary to
obtain all such material consents, waivers, licenses, orders, registrations,
approvals, permits, tax rulings and authorizations. In furtherance and not in
limitation of the foregoing, each party hereto agrees to make an appropriate
filing of a Notification and Report Form pursuant to the HSR Act with respect to
the transactions contemplated hereby as promptly as practicable after the date
hereof and to supply as promptly as practicable any additional information and
documentary material that may be requested pursuant to the HSR Act and to take
all other actions necessary to cause the expiration or termination of the
applicable waiting periods under the HSR Act as soon as practicable, and (iii)
the defending of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the transactions contemplated
hereby, including seeking to have any stay or temporary restraining order
entered by any Governmental Entity vacated or reversed. Nothing in this Section
shall require FNF and its Subsidiaries to sell, hold separate or otherwise
dispose of or conduct their business in a specified manner, or agree to sell,
hold separate or otherwise dispose of or conduct their business in a specified
manner, or permit the sale, holding separate or other disposition of, any assets
of FNF or its Subsidiaries or the conduct of their business in a specified
manner, whether as a condition to obtaining any approval from a Governmental
Entity or any other Person or for any other reason (any such sale, holding
separate or other disposition or conduct of business shall be referred to herein
as a "Burdensome Condition").
SECTION 8.2 Certain Filings; Cooperation in Receipt of Consents.
(a) As promptly as practicable after the date hereof, ANFI shall prepare
and file with the SEC the Proxy Statement/Prospectus and, as soon as practicable
following the period of any review thereof by the SEC staff, FNF shall prepare
and file the Registration Statement, in which the Proxy Statement/Prospectus
will be included. Each of ANFI and FNF shall use commercially reasonable efforts
to have the Registration Statement declared effective under the Securities Act
as promptly as practicable after such filing and to keep the Registration
Statement effective as long as is necessary to consummate the Merger. ANFI shall
mail the Proxy Statement/Prospectus to its shareholders as promptly as
practicable after the Registration Statement is declared effective under the
Securities Act and, if necessary, after the Proxy Statement/Prospectus shall
have been so mailed, promptly circulate amended, supplemental or supplemented
proxy material and, if required in connection therewith, resolicit proxies. FNF
shall also take any action (except to qualify to do business or to file a
general consent to service of process) required to be taken under any applicable
state securities or "blue sky" laws in connection with the issuance of FNF
Common Shares in the Merger, and ANFI shall use commercially reasonable efforts
to furnish all information concerning its directors, officers, shareholders and
business as may be reasonably requested by FNF in connection with any such
action.
(b) No filing of, or any amendment or supplement to, the Proxy
Statement/Prospectus will be made by ANFI without providing FNF the opportunity
to review and comment thereon. Each party will advise the other party, promptly
after it receives notice thereof, of the time when the Registration Statement
has become effective or any supplement or amendment has been filed, the issuance
of any stop order, the suspension of the qualification of the FNF Common Shares
issuable in connection with the Merger for offering or sale in any jurisdiction,
or any request by the SEC for amendment of the Proxy Statement/Prospectus or
comments thereon and responses thereto or requests by the SEC for additional
information. If at any time prior to the
25
Effective Time any information relating to either party, or any of their
respective Affiliates, officers or directors should be discovered by ANFI or
FNF, that should be set forth in an amendment or supplement to the Registration
Statement or the Proxy Statement/Prospectus, so that either of such documents
would not include any misstatement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, the party that
discovers such information shall promptly notify the other party hereto and an
appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law or regulation,
disseminated to the shareholders of ANFI.
(c) ANFI shall use commercially reasonable efforts to cause to be delivered
to FNF two letters from ANFI's independent public accountants, one dated the
date on which the Registration Statement shall become effective and one dated
the date of the Effective Time, each addressed to ANFI and FNF, in form and
substance reasonably satisfactory to FNF and customary in scope and substance
for comfort letters delivered by independent public accountants in connection
with registration statements similar to the Registration Statement. FNF shall
use commercially reasonable efforts to cause to be delivered to ANFI two letters
from FNF's independent public accountants, one dated the date on which the
Registration Statement shall become effective and one dated the date of the
Effective Time, each addressed to ANFI and FNF, in form and substance reasonably
satisfactory to ANFI and customary in scope and substance for comfort letters
delivered by independent public accountants in connection with registration
statements similar to the Registration Statement.
(d) ANFI, Merger Sub and FNF shall cooperate with one another in (i)
determining whether any other action by or in respect of, or filing with, any
Governmental Entity is required, or any actions, consents, approvals or waivers
are required to be obtained from parties to any material contracts, in
connection with the consummation of the transactions contemplated hereby and
(ii) seeking any such other actions, consents, approvals or waivers or making
any such filings, furnishing information required in connection therewith and
seeking promptly to obtain any such actions, consents, approvals or waivers.
Each party shall permit the other party to review any communication given by it
to, and shall consult with each other in advance of any meeting or conference
with, any Governmental Entity or, in connection with any legal proceeding by a
private party, with any other Person, and to the extent permitted by the
applicable Governmental Entity or other Person, give the other party the
opportunity to attend and participate in such meetings and conferences, in each
case in connection with the transactions contemplated hereby.
SECTION 8.3 Public Announcements. The parties shall consult with each
other before issuing, and provide each other a reasonable opportunity to review
and comment upon, any press release or public statement with respect to this
Agreement and the transactions contemplated hereby and, except as may be
required by applicable law or any listing agreement with any national securities
exchange, will not issue any such press release or make any such public
statement prior to such consultation.
SECTION 8.4 Access to Information; Notification of Certain Matters.
(a) From the date hereof until the Effective Time and subject to applicable
law, ANFI and FNF shall (i) give to the other party, its counsel, financial
advisors, auditors and other authorized representatives reasonable access to the
offices, properties, books and records of such party, (ii) furnish or make
available to the other party, its counsel, financial advisors, auditors and
other authorized representatives such financial and operating data and other
information as such Persons may reasonably request and (iii) instruct its
employees, counsel, financial advisors, auditors and other authorized
representatives to cooperate with the reasonable requests of the other party in
its investigation. Any investigation pursuant to this Section 8.4(a) shall be
conducted in such manner as not to interfere unreasonably with the conduct of
the business of the other party. All such information shall be deemed
proprietary information of the delivering party, and shall, to the fullest
extent permitted by law, be kept confidential by the receiving party and not
used other than in connection with the transactions contemplated by this
Agreement. No information or knowledge obtained in any investigation pursuant to
this Section 8.4(a) shall affect or be deemed to modify any representation or
warranty made by any party hereunder.
26
(b) Each party hereto shall give notice to each other party hereto, as
promptly as practicable after the event giving rise to the requirement of such
notice, of:
(i) any communication received by such party from, or given by such
party to, any Governmental Entity in connection with any of the
transactions contemplated hereby;
(ii) any notice or other communication from any Person alleging that
the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement; and
(iii) any actions, suits, claims, investigations or proceedings
commenced or, to its Knowledge, threatened against, relating to or
involving or otherwise affecting such party or any of its Subsidiaries
that, if pending on the date of this Agreement, would have been required to
have been disclosed, or that relate to the consummation of the transactions
contemplated by this Agreement; provided, however, that the delivery of any
notice pursuant to this Section 8.4(b) shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
SECTION 8.5 Further Assurances. At and after the Effective Time, the
officers and directors of the Surviving Corporation will be authorized to
execute and deliver, in the name and on behalf of ANFI, any deeds, bills of
sale, assignments or assurances and to take and do, in the name and on behalf of
ANFI, any other actions and things to vest, perfect or confirm of record or
otherwise in the Surviving Corporation any and all right, title and interest in,
to and under any of the rights, properties or assets of ANFI acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with, the
Merger.
SECTION 8.6 Tax Matters.
(a) Prior to and following the Effective Time, each party shall use
commercially reasonable efforts to cause the Merger to qualify as a
reorganization under Section 368(a)(2)(D) of the Code and will not take any
action or fail to take any action reasonably likely to cause the Merger not so
to qualify.
(b) Each party shall use its commercially reasonable efforts to obtain the
opinions referred to in Section 9.2(b) and Section 9.3(e).
SECTION 8.7 Control of Other Party's Business. Nothing contained in this
Agreement shall give FNF, directly or indirectly, the right to control or direct
ANFI's operations prior to the Effective Time. Nothing contained in this
Agreement shall give ANFI, directly or indirectly, the right to control or
direct FNF's or Merger Sub's operations prior to the Effective Time. Prior to
the Effective Time, each of FNF and ANFI shall exercise, consistent with the
terms and conditions of this Agreement, complete control and supervision over
its respective operations.
SECTION 8.8 Affiliate Letters. Within 30 days following the date hereof,
ANFI shall cause to be delivered to FNF a letter identifying, in ANFI's
reasonable judgment, the names and addresses of all Persons who may be deemed to
be "affiliates" of ANFI for purposes of Rule 145(c) under the Securities Act.
ANFI shall use commercially reasonable efforts to cause each such Person who is
so identified to deliver to FNF on or prior to the 30th day prior to the
Effective Time a letter agreement reasonably satisfactory to FNF acknowledging
that such Person may be deemed an Affiliate of FNF following the Merger and thus
may be subject to restrictions on the resale of FNF Common Shares held by such
Person following the Merger.
ARTICLE IX
CONDITIONS TO THE MERGER
SECTION 9.1 Conditions to the Obligations of Each Party. The obligations
of ANFI, Merger Sub and FNF to consummate the Merger are subject to the
satisfaction of the following conditions:
(a) the ANFI Shareholder Approval shall have been obtained;
(b) the FNF Common Shares to be issued in the Merger shall have been
authorized for listing on the NYSE, subject to official notice of issuance;
27
(c) (i) the Registration Statement shall have become effective in
accordance with the provisions of the Securities Act, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued by the SEC and no proceedings for that purpose shall have been
initiated by the SEC and not concluded or withdrawn and (ii) all state
securities or "blue sky" authorizations necessary to carry out the
transactions contemplated hereby shall have been obtained and be in effect;
(d) any applicable waiting period under the HSR Act relating to the
Merger shall have expired or been earlier terminated without the imposition
of any Burdensome Condition;
(e) no Governmental Entity of competent authority or jurisdiction
shall have issued any order, injunction or decree, or taken any other
action, that is in effect and restrains, enjoins or otherwise prohibits the
consummation of the Merger nor is there pending any action that seeks to
restrain, enjoin or otherwise prohibit the consummation of the Merger; and
(f) the parties shall have obtained or made all consent, approvals,
actions, orders, authorizations, registrations, declarations, announcements
and filings contemplated by Section 4.3 and Section 5.3 which if not
obtained or made (i) would render consummation of the Merger illegal or
(ii) would be reasonably likely to have a Material Adverse Effect on the
Surviving Corporation, taken as a whole, after giving effect to the Merger.
SECTION 9.2 Conditions to the Obligations of ANFI. The obligations of ANFI
to consummate the Merger are subject to the satisfaction of the following
further conditions:
(a) (i) FNF and Merger Sub shall have performed in all material
respects all of their obligations hereunder required to be performed by it
at or prior to the time of the filing of the Agreement of Merger, (ii) the
representations and warranties of FNF and Merger Sub contained in this
Agreement (without giving effect to any materiality, Material Adverse
Effect or similar qualifications included therein) shall have been true and
correct when made and at and as of the time of the filing of the Agreement
of Merger as if made at and as of such time (except to the extent any such
representation or warranty expressly speaks as of an earlier date, in which
case it shall be true and correct as of such date), except for such
inaccuracies as would not be reasonably likely, individually or in the
aggregate, to have a FNF Material Adverse Effect, and (iii) ANFI shall have
received certificates signed by the Chief Executive Officer or Chief
Financial Officer of FNF and Merger Sub to the foregoing effect;
(b) ANFI shall have received an opinion of counsel reasonably
acceptable to ANFI, which may include ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel to FNF and Merger Sub, in form and substance reasonably
satisfactory to ANFI, on the basis of certain facts, representations and
reasonable assumptions set forth in such opinion, dated as of the date of
the filing of the Agreement of Merger, to the effect that the Merger will
be treated for federal income tax purposes as a tax free reorganization
under Section 368(a)(2)(D) of the Code. In rendering such opinion, such
counsel shall be entitled to rely upon customary representations of
officers of ANFI and FNF in form and substance reasonably satisfactory to
such counsel and other reasonable assumptions set forth therein; and
(c) Except as set forth on the FNF Disclosure Schedule, since the date
of the FNF balance sheet included in the FNF 10-Q for the quarter ended
September 30, 2002, there shall not have occurred any change in the
financial condition, business or operations of FNF and its Subsidiaries,
taken as a whole, that would be reasonably likely to have a FNF Material
Adverse Effect.
SECTION 9.3 Conditions to the Obligations of FNF and Merger Sub. The
obligations of FNF and Merger Sub to consummate the Merger are subject to the
satisfaction of the following further conditions:
(a) (i) ANFI shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior to the
time of filing of the Agreement of Merger, (ii) the representations and
warranties of ANFI contained in this Agreement (without giving effect to
any materiality, Material Adverse Effect or similar qualifications included
therein) shall have been true and correct when made and at and as of the
time of the filing of the Agreement of Merger as if made at and as of such
time (except to the extent any such representation or warranty expressly
speaks as of an earlier date, in which
28
case it shall be true and correct as of such date), except for such
inaccuracies as would not be reasonably likely, individually or in the
aggregate, to have an ANFI Material Adverse Effect, and (iii) FNF shall
have received a certificate signed by the Chief Executive Officer or Chief
Financial Officer of ANFI to the foregoing effect;
(b) Except as set forth on the ANFI Disclosure Schedule, since the
date of the ANFI balance sheet included in the ANFI 10-Q for the quarter
ended September 30, 2002, there shall not have occurred any change in the
financial condition, business or operations of ANFI and its Subsidiaries,
taken as a whole, that would be reasonably likely to have an ANFI Material
Adverse Effect;
(c) In the event the ANFI shareholders have any appraisal, dissenters'
or similar rights under applicable law, no more than three percent (3.0%)
of the ANFI Common Shares, determined as of the record date for the ANFI
Shareholders Meeting, shall have made an effective demand for exercise of
their appraisal, dissenters' or similar rights under applicable law;
(d) Each of the ANFI Senior Executives shall have outstanding options
to acquire ANFI common stock that, upon assumption thereof by FNF in
accordance with this Agreement, shall be exercisable into no more than
50,000 FNF Common Shares;
(e) FNF shall have received an opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇ (or other counsel reasonably acceptable to FNF) in form and substance
reasonably satisfactory to FNF, on the basis of certain facts,
representations and reasonable assumptions set forth in such opinion, dated
as of the date of the filing of the Agreement of Merger, to the effect that
the Merger will be treated for federal income tax purposes as a tax free
reorganization under Section 368(a)(2)(D) of the Code. In rendering such
opinion, such counsel shall be entitled to rely upon customary
representations of officers of ANFI and FNF in form and substance
reasonably satisfactory to such counsel and other reasonable assumptions
set forth therein; and
(f) FNF shall have received any consent, approvals, actions, orders,
or authorizations from the Department of Insurance necessary to consummate
the transactions contemplated in this Agreement and by the Merger,
including, without limitation, the conversion of ANFI to Ticor Title after
the Effective Time.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time by written notice by the terminating party to the
other parties (except if such termination is pursuant to Section 10.1(a)),
whether before or after the ANFI Shareholder Approval shall have been obtained:
(a) by mutual written agreement of ANFI and FNF;
(b) by either ANFI or FNF, if
(i) the Merger shall not have been consummated by June 30, 2003
(the "End Date"); provided, however, that the End Date may be extended
by ANFI or FNF for an additional 60 days (the "Extended End Date") in
the event that, as of the End Date, all conditions to the Merger have
been satisfied other than the conditions set forth in Section 9.1(d) and
Section 9.1(f) above, except that any party whose breach of any
provision of or whose failure to perform any obligation under this
Agreement has been the cause of, or has resulted in, the failure to
obtain any consent or approval which has not been obtained by the End
Date shall not be permitted to extend the End Date to the Extended End
Date due to a failure of the conditions set forth in Section 9.1(d) and
Section 9.1(f); and provided further, that the right to terminate this
Agreement under this Section 10.1(b)(i) shall not be available to any
party whose breach of any provision of or whose failure to perform any
obligation under this Agreement has been the cause of, or has resulted
in, the failure of the Merger to occur on or before the End Date or the
Extended End Date, as the case may be;
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(ii) there shall be any law or regulation that makes consummation
of the Merger illegal or otherwise prohibited or any judgment,
injunction, order or decree of any Governmental Entity having competent
jurisdiction enjoining ANFI or FNF from consummating the Merger is
entered and such judgment, injunction, judgment or order shall have
become final and nonappealable and, prior to such termination, the
parties shall have used their respective commercially reasonable efforts
to resist, resolve or lift, as applicable, such law, regulation,
judgment, injunction, order or decree; provided, however, that the right
to terminate this Agreement under this Section 10.1(b)(ii) shall not be
available to any party whose breach of any provision of or whose failure
to perform any obligation under this Agreement has been the cause of
such law, regulation, judgment, injunction, order or decree; or
(iii) at the ANFI Shareholders Meeting (including any adjournment
or postponement thereof), the ANFI Shareholder Approval shall not have
been obtained;
(c) by ANFI, (i) if a breach of any representation, warranty, covenant
or agreement on the part of FNF set forth in this Agreement shall have
occurred which would cause the condition set forth in Section 9.2(a) not to
be satisfied, and either such condition shall be incapable of being
satisfied by the End Date or, if applicable, the Extended End Date or such
breach or failure to perform has not been cured within 10 days after notice
of such breach or failure to perform has been given by ANFI to FNF or (ii)
as contemplated by Section 6.3(d);
(d) by FNF, (i) if ANFI's Board of Directors shall have (A) amended,
modified, withdrawn, conditioned or qualified the ANFI Recommendation in a
manner materially adverse to FNF, (B) recommended any Acquisition Proposal
to ANFI's shareholders, and/or (C) failed to make the ANFI Recommendation;
(ii) if a breach of or failure to perform any representation, warranty,
covenant or agreement on the part of ANFI set forth in this Agreement shall
have occurred which would cause the condition set forth in Section 9.3(a)
not to be satisfied, and either such condition is incapable of being
satisfied by the End Date or, if applicable, the Extended End Date or such
breach or failure to perform has not been cured within 10 days after notice
of such breach or failure to perform has been given by FNF to ANFI; or
(iii) as contemplated by Section 4.4.
SECTION 10.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 10.1 (including any such termination by way of Section
6.3(d)), there shall be no liability or obligation on the part of FNF or ANFI,
or any of their respective officers, directors, stockholders, agents or
Affiliates, except as set forth in Sections 10.2, 10.3 and 10.4 of this
Agreement, which shall remain in full force and effect and survive any
termination of this Agreement; provided, however, neither ANFI nor FNF shall be
relieved of or released from any liabilities or damages arising out of its
material breach of or material failure to perform its obligations under this
Agreement, except that the payment of the Termination Fee by ANFI pursuant to
Section 10.4 shall be in lieu of any and all liabilities or damages arising out
of ANFI's material breach or material failure to perform its obligations under
this Agreement.
SECTION 10.3 Expenses. Whether or not the Merger is consummated, all fees
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, except
that (i) each of ANFI and FNF shall bear and pay one-half of the filing fees
incurred in connection the Registration Statement and Proxy Statement/Prospectus
and HSR filings, and (ii) if the Merger is consummated, the Surviving
Corporation shall pay, or cause to be paid, all state, local, foreign or
provincial sales, use, real property, transfer, stock transfer or similar taxes
(including any interest or penalties with respect thereto) attributable to the
Merger.
SECTION 10.4 Termination Fee.
(a) ANFI shall pay to FNF a termination fee (the "Termination Fee") in the
amount of $2,780,000 if this Agreement is terminated solely as follows:
(i) if ANFI shall terminate this Agreement pursuant to Section
10.1(c)(ii);
(ii) if FNF shall terminate this Agreement pursuant to Section
10.1(d)(i);
30
(iii) if either party shall terminate this Agreement pursuant to
Section 10.1(b)(iii) due to a failure to obtain the ANFI Shareholder
Approval, and one or more of the Senior Executives are in breach of the
Voting Agreement or has otherwise failed to vote all shares of the ANFI
voting capital stock, for which he or it has voting power, in favor of the
Merger; or
(iv) if FNF shall terminate this Agreement pursuant to Section
10.1(d)(ii) and within twelve (12) months of such termination, ANFI shall
engage in any negotiations or discussions with any third party regarding an
Acquisition Proposal.
(b) The Termination Fee required to be paid pursuant to Section 10.4 shall
be paid prior to, and shall be a pre-condition to the effectiveness of,
termination of this Agreement pursuant to Section 10.1(c)(iii). Any other
payment of the Termination Fee required to be made shall be made not later than
two Business Days after termination of this Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Survival. The representations and warranties contained in
this Agreement shall not survive the Effective Time. The covenants contained in
Articles II, III and XI shall survive the Effective Time.
SECTION 11.2 Notices. Except as otherwise expressly set forth in Section
6.3(c), all notices, requests and other communications to any party hereunder
shall be in writing (including facsimile or similar writing) and shall be given,
if to FNF or Merger Sub, to:
Fidelity National Financial, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to ANFI, to:
American National Financial, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
Facsimile:
with a copy to:
Palmieri, Tyler, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other party hereto. Each such notice, request
or other communication shall be effective upon receipt.
SECTION 11.3 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived prior to the
Effective Time if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by ANFI and FNF or in the case of a waiver,
by the party against whom the waiver is to be effective; provided, however, that
after the ANFI Shareholder Approval, no such amendment or waiver shall, without
the further approval of such shareholders, be made that would require such
approval under any applicable law, rule or regulation.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 11.4 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto. Any purported assignment in
violation hereof shall be null and void.
SECTION 11.5 Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of
California
without reference to its principles of conflicts of laws.
SECTION 11.6 Counterparts; Effectiveness; Third Party Beneficiaries. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by the other party hereto. No provision
of this Agreement is intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
SECTION 11.7 Jurisdiction. Except as otherwise expressly provided in this
Agreement, the parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall be
brought in a state court located in Orange, California, and each of the parties
hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 11.2 shall be deemed
effective service of process on such party.
SECTION 11.8 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 11.9 Arbitration. Except with respect to any instances when
equitable relief is sought by a party in which case such relief may be sought in
any court of competent jurisdiction, any and all disputes, controversies and
claims arising out of or relating to this Agreement or concerning the respective
rights or obligations of the parties hereto shall be settled and determined by
arbitration before the Judicial Arbitration and Mediation Services,
Inc./Endispute ("JAMS"). The arbitrator shall be mutually selected by FNF and
ANFI or, if they are unable to agree as to an arbitrator within ten (10) days of
submitting the controversy or dispute to JAMS, each of FNF and ANFI shall select
an arbitrator and within ten (10) days thereafter those arbitrators shall select
the arbitrator to hear or decide the dispute. The arbitrator shall follow and
base his or her award on California law. Any award or decision obtained from any
such arbitration proceeding shall be final and binding on the parties, and
judgement upon any award thus obtained may be entered into any court
32
having jurisdiction thereof. No action at law based upon any claim arising out
of or related to this Agreement shall be instituted in any court by FNF or ANFI
except (a) an action to compel arbitration pursuant to this Section 11.9 or (b)
an action to enforce an award obtained in an arbitration proceeding in
accordance with this Section 11.9. FNF and ANFI hereby consent to the exclusive
jurisdiction of the state and federal courts sitting in California in any such
action to compel arbitration pursuant to this paragraph or to enforce an award
obtained in an arbitration proceeding in accordance with this Section 11.9. FNF
and ANFI further agree that service of process may be effected by registered or
certified mail to the address of FNF or ANFI, as the case may be, as provided in
this Agreement. The costs of any such arbitration shall be borne one-half for
the account of FNF and one-half by ANFI.
SECTION 11.10 Enforcement. 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. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
SECTION 11.11 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof.
SECTION 11.12 Attorneys' Fees. If any action, suit or other proceeding is
instituted to remedy, prevent or obtain relief from a default in the performance
by either party of any of its obligations under Section 10.2 of this Agreement,
the prevailing party shall recover all of such party's attorneys' fees incurred
in each and every such action, suit or other proceeding, including any and all
appeals or petitions therefrom. As used in this Section 11.12, attorneys' fees
shall be deemed to mean the full and actual costs of any legal services actually
performed in connection with the matters involved calculated on the basis of the
usual fee charged by the attorney performing such services and shall not be
limited to "reasonable attorneys' fees" as defined in any statute or rule of
court.
[signature page to follow]
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By
------------------------------------
ANFI MERGER SUB, INC.
By
------------------------------------
ANFI, INC.
By
------------------------------------
34
EXHIBIT A
MODIFICATION TO EXISTING EMPLOYMENT AGREEMENTS
OF
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇
1. The modifications shall be effective at the Effective Time.
2. The severance payment provided for in Section 8 of the employment
agreements shall not apply by reason of the consummation of the transactions
contemplated by this Agreement, but rather shall only apply to transactions
after the Effective Time involving a change in control of Merger Sub or FNF.
3. The annual incentive bonus to which each employee is entitled pursuant
to Section 4(e) of the employment agreements shall be determined in a manner
mutually agreeable to FNF and each such employee (as reflected in the
modification), rather than as presented provided for in said Section 4(e).