-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WhqaFzIEJblnkrChHXERaoMUbOdUmNVfZ673nF8h/aWebzI9K6T4c6MSHf249Fw2 Mlkj7lt+8aQ1cOIBvOhLOQ== 0000950137-04-011560.txt : 20041229 0000950137-04-011560.hdr.sgml : 20041229 20041229153510 ACCESSION NUMBER: 0000950137-04-011560 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 20041223 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Other Events FILED AS OF DATE: 20041229 DATE AS OF CHANGE: 20041229 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIDELITY NATIONAL FINANCIAL INC /DE/ CENTRAL INDEX KEY: 0000809398 STANDARD INDUSTRIAL CLASSIFICATION: TITLE INSURANCE [6361] IRS NUMBER: 860498599 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09396 FILM NUMBER: 041231031 BUSINESS ADDRESS: STREET 1: 601 RIVERSIDE AVENUE STREET 2: , CITY: JACKSONVILLE STATE: FL ZIP: 32204 BUSINESS PHONE: 904-854-8100 MAIL ADDRESS: STREET 1: 601 RIVERSIDE AVENUE STREET 2: , CITY: JACKSONVILLE STATE: FL ZIP: 32204 8-K 1 a04306e8vk.htm FORM 8-K Fidelity National Financial, Inc.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

Current Report
Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): December 23, 2004

Fidelity National Financial, Inc.

(Exact Name of Registrant as Specified in its Charter)

Delaware
(State or Other Jurisdiction of Incorporation)

     
1-9396
  86-0498599
(Commission File Number)
  (I.R.S. Employer
  Identification Number)
         
601 Riverside Avenue, Jacksonville, Florida
    32204  
(Address of Principal Executive Offices)
  (Zip Code)

(904) 854-8100
(Registrant’s Telephone Number, Including Area Code)

Not Applicable
(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written Communication pursuant to Rule 425 under Securities Act (17CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR 240.13e-4(c))

 

TABLE OF CONTENTS

Item 1.01. Entry into a Material Definitive Agreement
Item 3.02. Unregistered Sales of Equity Securities
Item 8.01. Other Events
Item 9.01. Financial Statements and Exhibits
SIGNATURES
INDEX TO EXHIBITS
EXHIBIT 10.1
EXHIBIT 99.1
EXHIBIT 99.2
EXHIBIT 99.3
EXHIBIT 99.4
EXHIBIT 99.5
EXHIBIT 99.6
EXHIBIT 99.7
EXHIBIT 99.8

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Item 1.01. Entry into a Material Definitive Agreement

(a) Definitive Material Agreement

     The Transaction

     On December 23, 2004, Fidelity National Financial, Inc., a Delaware corporation (“FNF”), announced the execution of a definitive Stock Purchase Agreement dated as of December 23, 2004 (the “Purchase Agreement”), between Fidelity National Information Services, Inc., a Delaware corporation and wholly-owned subsidiary of FNF (“FNIS”), FNF, certain affiliates of Thomas H. Lee Partners, L.P. (“THL” or the “THL Entities”) and certain affiliates of Texas Pacific Group (“TPG” or the “TPG Entities”). The Purchase Agreement provides the terms upon which FNIS will sell a 25 percent minority equity interest in FNIS common stock to the THL Entities and the TPG Entities (collectively, the “Sponsors” or the “Sponsor Group”) for a purchase price of $500,000,000 (the “Transaction”).

     As previously disclosed by FNF, a condition to the Transaction is the consummation of a recapitalization of FNIS. FNF is currently in the negotiation process with a consortium of lenders regarding the credit facility to be entered into with respect to the recapitalization plan. Upon the successful completion of the recapitalization of FNIS, FNF will pay a special $10 per share cash dividend to FNF stockholders which is anticipated to be declared and paid during the first quarter of 2005.

     FNF anticipates the closing of the Transaction to occur following the recapitalization and payment of the special dividend. As detailed more fully below, upon consummation of the Transaction, a new FNIS board of directors will be established. William P. Foley, II, current Chairman and Chief Executive Officer of FNF, will serve as the Chairman and Chief Executive Officer of FNIS. Following the closing of the Transaction, FNF will have the right to appoint twelve of the members of the FNIS board of directors and THL and TPG will each have the right to appoint two members of the FNIS board. THL and TPG have certain demand registration rights, including rights relating to the registration of their shares in a public offering of FNIS common stock if certain criteria are met relating to the potential price and gross proceeds that would be generated by the public offering. If FNIS has not consummated a public offering of its common stock within two years of the closing of the Transaction, the Sponsors have various rights relating to a sale of their shares of FNIS common stock which are summarized below.

     The Purchase Agreement requires the establishment of an option pool for members of FNIS management to purchase an aggregate 7.5 percent of the fully-diluted shares of FNIS at the same price paid by the Sponsor Group for their minority equity interest in FNIS. A portion of the option pool will be subject to time-based, quarterly vesting over four and five-year periods, while the other portion will be subject to performance-based vesting.

     Purchase Agreement

     The Purchase Agreement provides for certain representations, warranties, covenants and indemnities in connection with the Transaction. The closing of the Transaction under the Purchase Agreement is subject to customary closing conditions, including conditions related to approvals, expiration or termination of any applicable waiting period under the Hart-Scott-Rodino Act, consents and waivers, and the closing of the FNIS bank facility on terms provided for under the Purchase Agreement. In addition to these closing conditions, the Purchase Agreement also

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requires the parties to execute other transaction documents relating to the Transaction, including the following:

     Stockholders Agreement

     In connection with the Transaction, FNIS will enter into a Stockholders Agreement with the Sponsor Group. Under the Stockholders Agreement, following the closing of the Transaction the parties agree to vote their FNIS shares such that FNF will have the right to elect up to twelve directors and THL and TPG will have the right to elect two directors each. In the event that THL or TPG cease to own at least 50% of the shares held by either of them as of the closing of the Transaction, they will be entitled to elect only one director. The Sponsor Group will also have the right to representation on each of the committees of the FNIS board.

     Under the terms of the Stockholders Agreement, the chairman of the FNIS board shall be elected by a majority vote of the FNIS board; provided that William P. Foley, II shall serve as a Chairman for an initial period of three years. The Stockholders Agreement also provides that if the FNIS board proposes to appoint a new Chief Executive Officer, Chief Financial Officer or Chief Operating Officer, the Sponsor Group will have a qualified right to veto the selection of up to three proposed candidates for each position.

     The Stockholders Agreement provides that prior to a public offering of equity securities of FNIS or any of its subsidiaries, the following actions by FNIS or any of its subsidiaries will require the approval of the majority of shares held respectively by THL and by TPG:

•   the approval of any change in capital expenditures of more than 20 percent from previously approved amounts,

•   acquisitions in excess of $50,000,000 per transaction or series of related transactions, or in excess of $100,000,000 in the aggregate in any fiscal year,

•   amendments to the constituent documents of FNIS in a manner that disproportionately and adversely affects the rights of the Sponsors or adversely affects the indemnification of FNIS directors,

•   any sale of all or substantially all of the assets of FNIS or its material subsidiaries, or any change of control of FNIS or its material subsidiaries,

•   the incurrence of any indebtedness for borrowed money in excess of $100,000,000 or the granting of any lien on the assets, or pledge of the capital stock, of FNIS or its subsidiaries,

•   the authorization or issuance of any equity securities of FNIS or its subsidiaries that are senior to the shares held by the Sponsors as to liquidation preference, redemption rights or dividend rights,

•   any increase in the authorized number of shares of common stock issued to employees, officers or directors of, or consultants or advisors to, FNIS, pursuant to the current incentive plan or adoption of any similar incentive or option plan,

•   entering into any transaction which involves payments by any party of more than $500,000 annually in the aggregate, between FNIS and any of its subsidiaries on the one hand and any party to the Stockholders Agreement or its affiliates or other related parties on the other hand,

•   any public offering other than a Qualified Public Offering (as defined below), or

•   any commencement of any action relating to bankruptcy or seeking appointment of a receiver for FNIS or any of its subsidiaries or a substantial part of any of their assets, or making of a general assignment for the benefits of any of their creditors.

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     Subject to certain limitations, the Stockholders Agreement provides that prior to the completion of an initial public offering of equity securities of FNIS neither FNF nor the Sponsor Group may transfer any of their FNIS common stock without offering the other parties the right to participate in the sale on the same terms and conditions.

     The Stockholders Agreement provides the Sponsors with certain liquidity rights. If FNIS has not consummated a Qualified Public Offering prior to the second anniversary of the closing of the Transaction, then Sponsors holding at least 75% of the FNIS shares held by the Sponsors will have the right to notify FNF of their intent to sell their FNIS shares to FNF, whereupon the parties will negotiate in good faith the terms of a sale of such shares to FNF or FNIS. If the parties are unable to agree upon the terms of a sale, the Sponsors may initiate an appraisal process to determine an appraisal price. If, following any appraisal process, the Sponsors approve the appraisal price, the Sponsors may notify FNF and FNIS of their approval, and FNF or FNIS may elect to purchase for cash such shares at the appraisal price. If the Sponsors approve the appraisal price, but FNF and FNIS do not elect to purchase or fail to make an election to purchase the shares, the Sponsors will have the right to compel a sale of FNIS. If, however, a sale of FNIS does not occur in accordance with the provisions of the Stockholders Agreement, the Sponsors may exchange all (but not less than all) of their FNIS common stock for the common stock of FNF. Such exchange would be based upon the appraisal price of the Sponsors’ shares (based on a new appraisal process initiated at the time of exercise of the exchange) and the fair market value of FNF’s stock, determined by the average closing price of FNF’s stock for the 45-day trading period immediately prior to the exchange date. To the extent the number of shares to be received by the Sponsors at the appraisal price constitutes more than 19.9% of the outstanding capital stock of FNF (as determined pursuant to the rules of the New York Stock Exchange), then the Sponsors will receive the balance in cash as a pro rata portion of the appraisal price. If following any appraisal process the Sponsors do not approve the appraisal price, the Sponsors have the right to initiate the appraisal process two additional times, provided there is a 12-month period between the first election and the second election, and the second election and the third election.

     For the purposes of the Stockholders Agreement, “Qualified Public Offering” means a public offering whereby the offered shares trade on a national securities exchange or NASDAQ, and in which, at the election of FNIS, either one of the following criteria is fulfilled: (A) (i) the price per share paid by the public in such offering is at least $15.00 and less than $17.50 and (ii) the gross proceeds to FNIS would at least equal an amount obtained by multiplying the per share price in (A)(i) above by that number of shares equal to 15% of the outstanding shares of FNIS after giving effect to the offering, or (B) (i) the price per share paid by the public in such offering is at least $17.50, and (ii) the gross proceeds to FNIS would at least equal an amount obtained by multiplying the per share price in (B)(i) above by that number of shares equal to 12.5% of the outstanding shares of FNIS after giving effect to the offering.

     The Stockholders Agreement terminates upon the earlier of (i) the agreement of the parties to terminate the agreement, (ii) the dissolution or liquidation of FNIS, (iii) the sale of FNIS and (iv) the completion of a public offering of equity securities of FNIS.

     Registration Rights Agreement

     In connection with the closing of the Transaction, FNIS has agreed to enter into a Registration Rights Agreement with FNF and the Sponsors (the “Registration Rights Agreement”). The Registration Rights Agreement grants certain demand registration rights in connection with a Qualified Public Offering to FNF and to Sponsors holding 75% of the

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registrable shares owned by the Sponsor Group. The Registration Rights Agreement also grants certain incidental registration rights to FNF and the Sponsors. Rights granted under the Registration Rights Agreement are subject to holdback and other customary restrictions and limitations which are described in the agreement.

     Indemnification Agreements

     In connection with the closing of the Transaction, FNIS will enter into Director Indemnification Agreements (collectively, the “Indemnification Agreements”) with members of the board of directors of FNIS (the “Indemnitees”). Pursuant to the terms of the Indemnification Agreements, FNIS will provide the Indemnitees with specific contractual rights to indemnification against litigation expenses and liabilities, and to the extent insurance is available, coverage under a director’s liability insurance policy of FNIS.

     Noncompetition Agreement

     Under the terms of the Purchase Agreement, FNF has agreed to enter into a Non-competition and Non-solicitation Agreement with FNIS (the “Noncompetition Agreement”) as a condition to the closing of the Transaction. Under the terms of the Noncompetition Agreement, for a period from the date of the agreement until the first anniversary of the date that FNF ceases to beneficially own at least a majority of the outstanding capital stock of FNIS, FNF agrees that it will not, and will cause its affiliates (other than FNIS or its subsidiaries) not to, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of, other than ownership and control of FNIS and its subsidiaries, any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in specified businesses that are competitive with the business of FNIS (a “Competitive Business”). Notwithstanding the foregoing, nothing contained in the Noncompetition Agreement prevents FNF from: (i) engaging in certain enumerated activities; (ii) acquiring control of a business which is engaged in a Competitive Business and continuing to conduct such Competitive Business if FNF presents the opportunity to make the acquisition to the FNIS board of directors and (A) FNF’s designees on the FNIS board have voted in favor of FNIS or one of its subsidiaries making such acquisition and (B) the Sponsors’ designees on the FNIS board have voted against FNIS or any of its subsidiaries making such investment, provided that, FNF has consummated the acquisition on the same terms presented to the FNIS board (provided, however, FNF may not conduct any activities that constitute a Competitive Business through such acquired entity if such type of activities were not conducted by the acquired entity at the time of the acquisition); (iii) acquiring control of a business (A) which earns less than 10% of its annual revenues from engaging in a Competitive Business (“Minor Competitive Activity”), provided, however that such Minor Competitive Activity comprises less than 10% of the annual revenues of the acquired business during the entire term of the Noncompetition Agreement, or (B) which earns more than 10%, but less than 50% of its annual revenues from engaging in a Competitive Business (“Divestible Competitive Activity”), provided, however that such Divestible Competitive Activity shall be offered to FNIS within thirty days after closing such acquisition at a price equal to that paid by FNF or, if such price was not separately determined, at fair market value as determined by mutual consent of the parties or a mutually agreed upon appraisal process; or (iv) being a passive owner of less than five percent of the outstanding stock of a corporation which is publicly traded and is engaged in a Competitive Business.

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     Management Agreements

     In connection with the closing of the Transaction, FNIS has agreed to enter into a Management Agreement with THL Managers V, LLC, an affiliate of THL, and a Management Agreement with TPG GenPar IV, L.P., an affiliate of TPG (collectively, the “Management Agreements”). Under the terms of the Management Agreements, certain affiliates of the Sponsors will provide FNIS with advice and analysis, including advice with respect to debt facilities and arrangements and other matters (collectively, “Advisory Services”). Each Management Agreement provides that FNIS will pay the applicable THL or TPG affiliate in exchange for the Advisory Services: (i) a one time transaction fee of $12,500,000, payable at the closing of the Transaction, and (ii) an annual management fee, payable in advance in semi-annual installments beginning at the closing of the Transaction in an amount per year equal to $1,250,000. Each of the Management Agreements will terminate on the earlier to occur of five years after the closing of the Transaction and the consummation of a public offering of the equity securities of FNIS.

     2005 Stock Incentive Plan

     The Purchase Agreement provides for FNIS’s adoption of a stock incentive plan, referred to as the Fidelity National Information Services, Inc. 2005 Stock Incentive Plan (the “Plan”), under which incentive awards consisting of shares of FNIS common stock or options to purchase shares of FNIS common stock may be granted to employees, directors and consultants of FNIS and its subsidiaries. The Plan will become effective upon adoption by the FNIS board, subject to approval of the majority of FNIS’s Stockholders within twelve months of its adoption, and will terminate automatically on the day before the tenth anniversary of its adoption, unless earlier terminated by the FNIS board. Stock options granted under the Plan may consist of options intended to qualify as incentive stock options (as that term is defined in Section 422 of the Internal Revenue Code) or options not intended to so qualify. Stock awards may be granted with or without a purchase price, and may contain vesting and other terms and conditions, as the Plan’s administrator may determine. The Plan will be administered by the FNIS board or, at its election, by one or more committees consisting of one or more members who have been appointed by the FNIS board. The maximum number of shares of FNIS common stock that may be issued pursuant to awards under the Plan will be 7.5% of FNIS’s outstanding common stock, on a fully diluted basis immediately after the closing of the Transaction, subject to adjustment in connection with certain events or series of events affecting FNIS’s capital structure.

     Subject to the foregoing share limit and other terms and conditions in the Plan, the Plan’s administrator is authorized to grant awards under the Plan from time to time during the term of the Plan and to determine the terms of such awards; however, it is anticipated that awards respecting most or all of the shares reserved for issuance under the Plan will be granted at or around the time of the closing of the Transaction. The exercise price of awards will be equal to the price per share paid by the Sponsor Group in the Transaction. Awards will be evidenced by award agreements, which will set forth terms and conditions of the awards to the extent not set forth in the Plan. Unless a recipient’s award agreement provides otherwise, the vested portion of a recipient’s stock options will expire on the earlier of: (i) the expiration of their term, which will in no event be greater than ten years, (ii) twelve months following termination of the recipient’s service as a result of death, disability, retirement, or termination for other than cause, or (iii) the date of termination of the recipient’s service if the termination is for cause or voluntary by the recipient. Any unvested portion of a recipient’s options will expire upon termination of service.

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     Separation and Intercompany Agreements

     Under the terms of the Purchase Agreement, FNF and FNIS have agreed to: (i) identify all of the services that have been historically provided by FNF to FNIS or its subsidiaries and all other relationships between FNIS or its subsidiaries and FNF that are necessary for FNIS and its subsidiaries to continue operating in a manner that is substantially equivalent to the manner in which they have operated during the twelve months prior to the date of the Purchase Agreement (the “Relationships”); (ii) identify all of the other relationships and agreements between FNIS or its subsidiaries and FNF that are necessary for the separation of FNIS and its subsidiaries from FNF (the “Separation Agreements”); and (iii) memorialize in various agreements (the “Intercompany Agreements”) the terms and conditions of each of the Relationships and services to be continued after the closing of the Transaction. The Relationships to be covered by the Intercompany Agreements include, but are not limited to, corporate services provided by FNF and its subsidiaries to FNIS and its subsidiaries (including, without limitation, payroll, employee benefits, human resources, insurance, expense reimbursement and legal services), software licenses, information technology, intellectual property cross licenses, joint ownership and development, agency, starter repository access, title plant maintenance and title plant access, lease for space at FNIS’s headquarters and tax disaffiliation agreements.

     The foregoing description of the Transaction and the Purchase Agreement and other agreements does not purport to be complete and is qualified in its entirety by reference to the complete text of the Purchase Agreement and the forms of the other agreements. The complete text of the Purchase Agreement and the forms of the other agreements are filed as Exhibits 10.1 and 99.1 through 99.7 hereto and incorporated by reference herein.

Item 3.02. Unregistered Sales of Equity Securities

     The securities to be sold under the Purchase Agreement will be offered and sold in reliance upon exemptions from registration pursuant to Section 4(2) under the Securities Act of 1933, as amended ( the “Securities Act”), and Rule 506 promulgated thereunder. The agreements executed in connection with the Transaction contain representations to FNF and FNIS that the investors had access to information concerning FNIS’s operations and financial condition, the investors are acquiring the securities for their own account and not with a view to the distribution thereof in the absence of an effective registration statement or an applicable exemption from registration, and that the investors are accredited investors (as defined by Rule 501 under the Securities Act). At the time of their issuance, the securities will be deemed to be restricted securities for purposes of the Securities Act, as amended, and the certificates representing the securities shall bear legends to that effect. Please see “Stockholders Agreement” in Item 1.01(a) of this Current Report on Form 8-K (which Item 1.01(a) is incorporated into this Item 3.02 by reference) for a description of the Sponsors’ right to exchange FNIS common stock for FNF common stock.

Item 8.01. Other Events.

     The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 8.01 by reference.

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Item 9.01. Financial Statements and Exhibits.

(c) Exhibits

     
10.1
  Stock Purchase Agreement, by and among Fidelity National Information Services, Inc., Fidelity National Financial, Inc. and the Purchasers named therein, dated as of December 23, 2004.
 
    
99.1
  Form of Stockholders Agreement, by and among Fidelity National Information Services, Inc. and the other Parties thereto, dated as of                              , 2005.
 
    
99.2
  Form of Non-Competition and Non-Solicitation Agreement, by and between Fidelity National Financial, Inc. and Fidelity National Information Services, Inc., dated as of                              , 2005.
 
    
99.3
  Form of Registration Rights Agreement, by and among Fidelity National Information Services, Inc. and the Securityholders listed thereon, dated as of                              .
 
    
99.4
  Form of Fidelity National Information Services, Inc., 2005 Stock Incentive Plan.
 
    
99.5
  Form of Management Agreement, by and between Fidelity National Information Services, Inc. and TPG GenPar IV, L.P., dated as of                              , 2005.
 
    
99.6
  Form of Management Agreement, by and between Fidelity National Information Services, Inc. and THL Managers V, LLC, dated as of                              , 2005.
 
    
99.7
  Form of Director Indemnification Agreement, by and between Fidelity National Information Services, Inc. and                    , dated as of                              , 200     .
 
    
99.8
  Press Release of FNF.

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SIGNATURES

          Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

         
    FIDELITY NATIONAL FINANCIAL, INC.
 
        
  By:        /s/ Alan L. Stinson
     
  Name:   Alan L. Stinson
  Title:   Executive Vice President and
      Chief Financial Officer

Dated: December 29, 2004

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INDEX TO EXHIBITS

     
Number
   Description
10.1
  Stock Purchase Agreement, by and among Fidelity National Information Services, Inc., Fidelity National Financial, Inc. and the Purchasers named therein, dated as of December 23, 2004.
 
    
99.1
  Form of Stockholders Agreement, by and among Fidelity National Information Services, Inc. and the other Parties thereto, dated as of                              , 2005.
 
    
99.2
  Form of Non-Competition and Non-Solicitation Agreement, by and between Fidelity National Financial, Inc. and Fidelity National Information Services, Inc., dated as of                              , 2005.
 
    
99.3
  Form of Registration Rights Agreement, by and among Fidelity National Information Services, Inc. and the Securityholders listed thereon, dated as of                              .
 
    
99.4
  Form of Fidelity National Information Services, Inc., 2005 Stock Incentive Plan.
 
    
99.5
  Form of Management Agreement, by and between Fidelity National Information Services, Inc. and TPG GenPar IV, L.P., dated as of                              , 2005.
 
    
99.6
  Form of Management Agreement, by and between Fidelity National Information Services, Inc. and THL Managers V, LLC, dated as of                              , 2005.
 
    
99.7
  Form of Director Indemnification Agreement, by and between Fidelity National Information Services, Inc. and                    , dated as of                              , 200     .
 
    
99.8
  Press Release of FNF.

 

EX-10.1 2 a04306exv10w1.txt EXHIBIT 10.1 EXHIBIT 10.1 EXECUTION COPY STOCK PURCHASE AGREEMENT BETWEEN FIDELITY NATIONAL INFORMATION SERVICES, INC., FIDELITY NATIONAL FINANCIAL, INC. AND THE PURCHASERS NAMED HEREIN DATED AS OF DECEMBER 23, 2004 TABLE OF CONTENTS
PAGE ---- ARTICLE I DEFINITIONS........................................................ 2 1.1 Certain Definitions................................................ 2 1.2 Construction....................................................... 9 ARTICLE II PURCHASE OF SHARES................................................. 9 2.1 Purchase and Sale of the Shares.................................... 9 2.2 Closing Date....................................................... 10 2.3 Proceedings at Closing............................................. 10 2.4 Use of Proceeds.................................................... 10 ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT........................... 11 3.1 Organization and Power............................................. 11 3.2 Authorization...................................................... 11 3.3 Consents and Approvals............................................. 12 3.4 No Conflicts....................................................... 12 3.5 Broker's Fees...................................................... 12 3.6 Capitalization..................................................... 12 3.7 Subsidiaries and Equity Investments; Joint Ventures................ 13 3.8 Authorization of Securities........................................ 14 3.9 Investment Company Act............................................. 14 3.10 Financial Statements............................................... 14 3.11 Absence of Undisclosed Liabilities, Indebtedness................... 15 3.12 Absence of Certain Changes......................................... 15 3.13 Litigation; Orders................................................. 15 3.14 Compliance with Laws............................................... 15 3.15 Permits............................................................ 16 3.16 Contracts.......................................................... 16 3.17 Intellectual Property.............................................. 16 3.18 Affiliate Transactions............................................. 18 3.19 Assets and Properties.............................................. 19 3.20 Insurance.......................................................... 19
i TABLE OF CONTENTS (CONTINUED)
PAGE ---- 3.21 Tax Matters........................................................ 19 3.22 Employee Benefit Plans............................................. 21 3.23 Labor and Employment Matters....................................... 25 3.24 Real Property...................................................... 26 3.25 Environmental Matters.............................................. 26 3.26 Material Customers................................................. 27 3.27 Corporate Records.................................................. 28 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASERS....................... 28 4.1 Organization....................................................... 28 4.2 Authorization...................................................... 28 4.3 Consents and Approvals............................................. 29 4.4 No Conflicts....................................................... 29 4.5 Brokers' Fees...................................................... 29 4.6 Securities Law Matters; Valid Offering............................. 29 4.7 Sufficiency of Funds............................................... 30 ARTICLE V COVENANTS.......................................................... 30 5.1 Access to Information.............................................. 30 5.2 Conduct of the Business............................................ 30 5.3 Intercompany Agreements............................................ 33 5.4 All Reasonable Efforts; Further Assurances......................... 34 5.5 Approvals.......................................................... 34 5.6 Public Announcements............................................... 35 5.7 Notification....................................................... 35 5.8 Exclusivity........................................................ 35 5.9 Confidentiality.................................................... 36 5.10 Transfer Taxes..................................................... 36 5.11 Financial Statements............................................... 36 5.12 Parent Board Approval.............................................. 37 5.13 Non-Competition Agreements......................................... 37
ii TABLE OF CONTENTS (CONTINUED)
PAGE ---- ARTICLE VI CONDITIONS PRECEDENT TO CLOSING.................................... 37 6.1 Conditions Precedent to the Company's Obligations.................. 37 6.2 Conditions Precedent to Purchasers' Obligations.................... 39 ARTICLE VII CLOSING DELIVERIES................................................. 42 7.1 Items to Be Delivered by the Company............................... 42 7.2 Items to Be Delivered by Purchasers................................ 42 ARTICLE VIII SURVIVAL AND INDEMNIFICATION....................................... 43 8.1 Survival of Representations, Warranties, and Covenants............. 43 8.2 Indemnification.................................................... 43 8.3 Deductible; Maximum Liability...................................... 45 8.4 Definitions........................................................ 45 8.5 Procedures for Third-Party Claims.................................. 46 8.6 Direct Claims...................................................... 47 8.7 Sole Remedy........................................................ 47 8.8 Certain Other Matters.............................................. 47 ARTICLE IX TERMINATION........................................................ 48 9.1 Termination........................................................ 48 9.2 Effect of Termination.............................................. 49 ARTICLE X MISCELLANEOUS...................................................... 49 10.1 Amendments......................................................... 49 10.2 Assignment......................................................... 49 10.3 Binding Effect..................................................... 49 10.4 Counterparts....................................................... 49 10.5 Entire Agreement................................................... 50 10.6 Fees and Expenses.................................................. 50 10.7 Governing Law...................................................... 50 10.8 Headings........................................................... 50 10.9 Jurisdiction....................................................... 50 10.10 Notices............................................................ 51
iii TABLE OF CONTENTS (CONTINUED)
PAGE ---- 10.11 No Recourse........................................................ 52 10.12 Severability....................................................... 52 10.13 Specific Performance............................................... 52 10.14 Third-Party Beneficiaries.......................................... 53 10.15 Waiver............................................................. 53 10.16 Purchaser Obligations.............................................. 53
iv SCHEDULES A Allocation of Purchase Price and Shares EXHIBITS A Non-competition and Non-solicitation Agreement B Registration Rights Agreement C 2005 Stock Incentive Plan D Stockholders Agreement E Financing Term Sheet F Management Agreements G Intentionally Left Blank H Form of Director Indemnification Agreement STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is entered into as of December 23, 2004, between Fidelity National Information Services, Inc., a Delaware corporation (the "Company"), Fidelity National Financial, Inc., a Delaware corporation ("Parent"), and each of the Persons listed on Schedule A attached hereto (collectively, the "Purchasers"). WHEREAS, on the terms and subject to the conditions set forth herein, the Company desires to issue and sell to each Purchaser, and each such Purchaser desires to purchase and acquire from the Company, that number of shares of common stock, par value $0.0001 per share ("Common Stock"), of the Company, set forth opposite its name on Schedule A attached hereto. WHEREAS, Parent desires that the Company undertake such transactions. WHEREAS, the shares of Common Stock to be issued to the Purchasers hereunder are referred to collectively as the "Shares." WHEREAS, prior to the consummation of the sale of the Shares (the "Transaction"), the Company may be recapitalized in a transaction pursuant to which, the Company will have borrowed up to $2.5 billion (the "Initial Financing") on terms no worse to the Company than those set forth on the financing term sheet attached hereto as Exhibit E (the "Financing Term Sheet") of which up to $2 billion will be distributed by way of dividend from the Company to Parent. WHEREAS, immediately prior to the consummation of the Transaction, the Company may be recapitalized in a transaction pursuant to which, immediately prior to the Closing, the Company will have borrowed up to a total (including the Initial Financing) of $3.2 billion (together with the Initial Financing, the "Financing") on terms no worse to the Company than those set forth on the Financing Term Sheet, and a total of $2.7 billion will have been distributed by way of dividend from the Company to Parent. WHEREAS, in the event that the Initial Financing shall not have been consummated prior to the time immediately prior to the consummation of the Transaction, then the Company will be recapitalized in a transaction pursuant to which, immediately prior to the Closing, the Company will have borrowed an $3.2 billion (and in such event, such borrowing will be deemed hereunder to be the "Financing") on terms no worse to the Company than those set forth on the Financing Term Sheet, and $2.7 billion will be distributed by way of dividend from the Company to Parent. WHEREAS, the Company will use the remaining proceeds from the Transaction and the Financing in the manner set forth herein. NOW, THEREFORE, in consideration of the foregoing recitals and the representations, warranties, covenants, and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE I Definitions 1.1 Certain Definitions. The following terms shall have the meanings set forth below (and such meanings shall be equally applicable to both the singular and plural form of the terms defined, as the context may require): "Affiliate" means, in respect of any Person, any other Person that is directly or indirectly controlling, controlled by, or under common control with such Person or any of its Subsidiaries, and the term "control" (including the terms "controlled by" and "under common control with") means having, directly or indirectly, the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or by contract or otherwise. "Affiliated Group" has the meaning ascribed to it in Section 1504(a) of the Code or any other of provision of Law pursuant to which Taxes or Tax Returns are or may be paid or filed on a consolidated, combined or unitary basis. "Audited Financial Statements" has the meaning ascribed to it in Section 3.10. "Board of Directors" has the meaning ascribed to it in Section 6.2(h). "Business Day" means any day other than a Saturday, Sunday, or other day on which banking institutions in the State of New York are authorized or required by Law to close. "Capital Leases" means, in respect of any Person, leases of (or other agreements conveying the right to use) any property (whether real, personal, or mixed) by such Person as lessee that, in accordance with GAAP, either would be required to be classified and accounted for as capital leases on a balance sheet of such Person or otherwise be disclosed as such in a note to such balance sheet. "Capital Stock" means, in respect of any Person, any shares or other equivalents (however designated) of any class of corporate stock, partnership interests, or membership interests in a limited liability company or any other participations, rights, warrants, options, or other interests in the nature of an equity interest in such Person, including preferred stock. "Closing" has the meaning ascribed to it in Section 2.3. "Closing Date" has the meaning ascribed to it in Section 2.3. "Code" means the Internal Revenue Code of 1986, as amended. 3 "Common Stock" has the meaning ascribed to it in the recitals to this Agreement. "Company" has the meaning ascribed to it in the preamble to this Agreement. "Company Documents" has the meaning ascribed to it in Section 3.2. "Contractor" means all "preferred" agents, consultants, contractors, and subcontractors, as tracked by the Company's Contractor Management Office, which are involved in the development, support, customization, installation, maintenance or modification of any Intellectual Property of the Company or its Subsidiaries. "Contractor Agreement" means any written agreement between any Contractor and the Company or its Subsidiaries. "Contracts" means oral or written contracts, agreements, indentures, notes, bonds, loans, instruments, leases, commitments, or other equivalent arrangements or commitments. "Copyrights" means unexpired registrations for copyrighted material duly issued by the U.S. Copyright Office. "Default" has the meaning ascribed to it in Section 3.4. "DGCL" means the General Corporation Law of the State of Delaware. "Direct Claim" has the meaning ascribed to it in Section 8.5. "Director Indemnification Agreements" mean the indemnification agreements to be entered into by the Company and each member of the Company's Board of Directors, in substantially the form attached hereto as Exhibit H. "EBITDA" means the combined earnings of the Company and its Subsidiaries before deduction for interest, income taxes, depreciation and amortization, with each determined in accordance with GAAP applied consistent with the Company's past practice. "Employee Benefit Plans" has the meaning ascribed to it in Section 3.22(a). "Encumbrance" means any security interest, lien, pledge, claim, charge, encumbrance, right of first offer, right of first refusal, preemptive right, mortgage, indenture, security agreement or other equivalent agreement, arrangement, contract, commitment, understanding, or obligation, whether written or oral, and whether or not relating in any way to credit or the borrowing of money, other than as imposed by the Transaction Documents. "Environmental Costs and Liabilities" means, in respect of any Person, all Liabilities, obligations, responsibilities, Remedial Actions, Losses, damages, punitive 4 damages, consequential damages, treble damages, costs, and expenses (including all reasonable fees, disbursements, and expenses of counsel, experts, and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand by any other Person or in response to any violation of Environmental Law, whether known or unknown, accrued or contingent, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, to the extent based upon, related to, or arising under or pursuant to any Environmental Law, Environmental Permit, Order, or Contract with any Governmental Entity or other Person, that relates to any environmental, health or safety condition, violation of Environmental Law, or a Release or threatened Release of Hazardous Materials. "Environmental Law" means any Law in any way relating to the protection of human health and safety, the environment or natural resources including, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.Section 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. App.Section 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.Section 6901 et seq.), the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act (42 U.S.C.Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.Section 2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.Section 136 et seq.), and the Occupational Safety and Health Act (29 U.S.C.Section 651 et seq.), as each has been amended. "Environmental Permits" has the meaning ascribed to it in Section 3.25(a). "ERISA" has the meaning ascribed to it in Section 3.22(a). "ERISA Affiliate" has the meaning ascribed to it in Section 3.22(a). "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Financial Statements" has the meaning ascribed to it in Section 3.10. "Filed SEC Reports" means the Registration Statement on Form S-1 dated May 26, 2004, as amended through the date hereof, as filed by the Company with the SEC (but not including the information incorporated by reference therein). "Financing" has the meaning ascribed to it in the recitals to this Agreement. "GAAP" has the meaning ascribed to it in Section 3.10. "Governmental Entity" means any federal, state, or municipal court or other governmental department, commission, board, bureau, agency, or instrumentality, governmental or quasi-governmental, domestic or foreign. "Guaranty" shall mean any guaranty of the payment or performance of any Indebtedness or other obligation and any other equivalent arrangement whereby credit is extended to one obligor on the basis of any promise of another Person, whether that 5 promise is expressed in terms of an obligation to pay the Indebtedness of such obligor, or to purchase an obligation owed by such obligor, or to purchase goods and services from such obligor pursuant to a take or pay contract, or to maintain the capital, working capital, solvency, or general financial condition of such obligor, whether or not any such arrangement is reflected on the balance sheet of such other Person or referred to in a note thereto. "Hazardous Material" means any substance, material, or waste that is regulated, classified, or otherwise characterized under or pursuant to any Environmental Law as "hazardous," "toxic," "pollutant," "contaminant," "radioactive," or words of equivalent meaning or effect, including petroleum and its by-products, asbestos, polychlorinated biphenyls, radon, mold, and urea formaldehyde insulation. "HSR Act" has the meaning ascribed to it in Section 3.3. "Indebtedness" means, for any Person at the time of any determination, without duplication, all obligations, contingent or otherwise, of such Person that, in accordance with GAAP, should be classified upon the balance sheet of such Person as indebtedness. "Indemnifiable Losses" has the meaning ascribed to it in Section 8.4. "Indemnitee" has the meaning ascribed to it in Section 8.4. "Indemnitor" has the meaning ascribed to it in Section 8.4. "Indemnity Payment" has the meaning ascribed to it in Section 8.4. "Interim Balance Sheet" has the meaning ascribed to it in Section 3.10. "Interim Balance Sheet Date" has the meaning ascribed to it in Section 3.10. "Intellectual Property" means Marks; Patents; Copyrights; internet domain names that are registered with a domain name registrar; computer software; databases; proprietary technology; trade secrets and other confidential information; proprietary know-how; proprietary processes; formulae; algorithms; customer lists; source codes; object codes; and, in respect of all of the foregoing, related confidential data or information. "IRS" means the Internal Revenue Service and any governmental body or agency succeeding to the functions thereof. "Law" means, the common law and all federal, state, local, and foreign laws, rules and regulations, Orders, and other determinations of the United States, any foreign country, or any domestic or foreign Governmental Entity. "Leased Real Property" has the meaning ascribed to it in Section 3.24(a). 6 "Liabilities" means all Indebtedness, obligations, and other liabilities (or contingencies that have not yet become liabilities) of a Person, whether absolute, accrued, contingent (or based upon any contingency), known or unknown, fixed or otherwise, or whether due or to become due. "Management Agreements" shall mean those Management Agreements to be entered into at the Closing by and between the Company and each of THL Managers V, LLC and TPG GenPar IV, L.P., each in substantially the form attached as Exhibit F. "Marks" means trademarks and service marks (whether registered or unregistered), trade names and designs, together with all goodwill related to the foregoing. "Material Adverse Effect" means any material adverse effect on: (A) the business, liabilities, operations or financial position of the Company and its Subsidiaries, taken as a whole, other than any such effect to the extent it results from (i) changes in general economic, market or political conditions or any acts of war or terrorism, (ii) matters generally affecting any of the industries in which the Company or its Subsidiaries operate, (iii) matters resulting from the execution, delivery, performance or announcement of any of the Transaction Documents and the transactions contemplated hereby and thereby, or (iv) the actions of any of the Purchasers, or (B) the ability of the Company to perform any of its material obligations under any of the Transaction Documents. "Material Contracts" has the meaning ascribed to it in Section 3.16. "Multiemployer Plan" has the meaning ascribed to it in Section 3.22(a). "Multiple Employer Plans" has the meaning ascribed to it in Section 3.22(a). "Non-competition Agreement" shall mean that Non-competition and Non-solicitation Agreement to be entered into at the Closing by and between the Company and Parent, in substantially the form attached as Exhibit A. "Non-Disclosure Agreements" shall mean the Non-Disclosure Agreements, by and among Parent, Bear Stearns Merchant Manager II, LLC, and the Purchasers or their affiliates, dated as of October 13, 2004. "Order" has the meaning ascribed to it in Section 3.4. "Owned Real Property" has the meaning ascribed to it in Section 3.24(a). "Parent" has the meaning ascribed to it in the preamble. "Parent Distribution" has the meaning ascribed to it in Section 2.4. 7 "Parent's Knowledge" means the actual knowledge of William P. Foley, II, Al Stinson, Brent Bickett, Peter Sadowski, Tony Park, Dan Murphy, Roger Maloch, Brian Hershkowitz, Eric Swenson, Todd Johnson, Michael Gravelle, Dan Scheuble, Hugh Harris, Ernie Smith and Michael Sanchez. "Patents" means unexpired patents duly issued by the U.S. Patent and Trademark Office. "PBGC" has the meaning ascribed to it in Section 3.22(e). "Permits" has the meaning ascribed to it in Section 3.15. "Permitted Encumbrances" means (i) Encumbrances for current Taxes not yet due and payable (ii) any materialmen's, mechanics, workmen's, repairmen's, contractor's, warehousemen's, carrier's, supplier's, vendor's, or equivalent Encumbrances if payment is not yet due on the underlying obligation, (iii) liens reflected in the financial statements contained in the Filed SEC Reports, (iv) statutory or common law liens to secure landlords, lessors, or renters under leases or rental agreements confined to the premises rented, and (v) deposits or pledges made in connection with, or to secure payment of, worker's compensation, unemployment insurance, old age pension, or other social security programs mandated under applicable laws. "Person" means any individual, partnership, limited partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization, or Governmental Entity. "Plans" has the meaning ascribed to it in Section 3.22(a). "Purchase Price" has the meaning ascribed to it in Section 2.2. "Purchasers" has the meaning ascribed to it in the recitals to this Agreement. "Purchasers Representatives" means, in the case of the Purchasers affiliated with Thomas H. Lee Equity Fund V, L.P. ("THL"), Thomas M. Hagerty, and in the case of the Purchasers affiliated with TPG Partners IV, L.P. and TPG Partners III, L.P. ("TPG"), Jonathan Coslet, and in case either individual is unable to serve, such other person as a majority in interest of the Purchasers whom such person represents shall designate as a successor. It is acknowledged by the parties that any required consent of the Purchasers Representatives hereunder shall require the consent of both Thomas M. Hagerty and Jonathan Coslet and their respective successors, as the case may be. "Purchaser Documents" has the meaning ascribed to it in Section 4.2. "Purchaser Material Adverse Effect" shall mean a material adverse effect on the Purchasers' ability to consummate the transactions contemplated hereby. "Qualified Plans" has the meaning ascribed to it in Section 3.22(c). 8 "Real Property" has the meaning ascribed to it in Section 3.24(a). "Receiving Party" has the meaning ascribed to it in Section 5.7. "Registration Rights Agreement" shall mean that Registration Rights Agreement to be entered into at the Closing by and among the Company, the Purchasers and Parent, in substantially the form attached as Exhibit B. "Related Persons" has the meaning ascribed to it in Section 3.18. "Release" means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, or leaching into the indoor or outdoor environment, or into or out of any property. "Remedial Action" means all actions to (i) clean up, remove, treat, or in any other way address any Hazardous Material, (ii) prevent the Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care, or (iv) correct a condition of noncompliance with Environmental Laws. "SEC" means the U.S. Securities and Exchange Commission and any governmental body or agency succeeding to the functions thereof. "Securities Act" means the Securities Act of 1933, as amended. "Shares" has the meaning ascribed to it in the recitals to this Agreement. "Sponsor Group" shall mean (i) Thomas H. Lee Equity Fund V, L.P., Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., Thomas H. Lee Investors Limited Partnership, Putnam Investments Holdings, LLC, Putnam Investments Employees' Securities Company I, LLC, and Putnam Investments Employees' Securities Company II, LLC, collectively, and (ii) TPG Partners III, L.P., TPG Parallel III, L.P., TPG Investors III, L.P., FOF Partners III, L.P., FOF Partners III-B, L.P., TPG Dutch Parallel III, C.V. and TPG Partners IV, L.P., collectively. "Stock Incentive Plan" means the Company's 2005 Stock Incentive Plan, in substantially the form attached as Exhibit C. "Stockholders Agreement" shall mean that Stockholders Agreement to be entered into at the Closing by and among the Company, the Purchasers and Parent, in substantially the form attached as Exhibit D. "Subsidiary" means, in respect of any Person, any Person in which such first Person, directly or indirectly, beneficially owns more than 50% of either the equity interest in, or the voting control of, such Person, whether or not existing on the date hereof. 9 "Tax Returns" means all returns, declarations, reports, estimates, information returns and statements required to be filed or actually filed in respect of any Taxes. "Taxes" means (i) all federal, state, local, or foreign taxes, charges, fees, imposts, levies, or other assessments, including, all net income, gross receipts, capital, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation, property, and estimated taxes, customs duties, fees, assessments, and charges of any kind whatsoever, (ii) all interest, penalties, fines, additions to tax, or additional amounts imposed by any taxing authority in connection with any item described in clause (i), and (iii) any liability in respect of any items described in clauses (i) and/or (ii) payable by reason of contract, assumption, transferee liability, operation of Law, Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision of Law) or otherwise. "Third Party Claims" has the meaning ascribed to it in Section 8.3. "Transaction Documents" means, collectively, this Agreement, the Stockholders Agreement, the Registration Rights Agreement, the Intercompany Agreements, the Non-Competition Agreement, the Management Agreements, the Director Indemnification Agreements and each other document, instrument, certificate, or agreement to be executed by the parties to effect the transactions contemplated by this Agreement. 1.2 Construction. (a) All References to "Articles," "Sections," "Schedules," and "Exhibits" contained in this Agreement are, unless specifically indicated otherwise, references to articles, sections, schedules, or exhibits of or to this Agreement. (b) As used in this Agreement, the following terms shall have the meanings indicated: (i) "day" means a calendar day; (ii) "U.S." or "United States" means the United States of America; (iii) "dollar" or "$" means lawful currency of the United States; (iv) "including" or "include" means "including without limitation"; and (v) references in this Agreement to specific Laws (such as the DGCL, the Code, and ERISA), or to specific sections or provisions of Laws, apply to the respective U.S. or state Laws that bear the names so specified and to any succeeding Law (which now has a new section number, code number or other designation that is different from that used herein and is in existence on the date hereof), section, or provision corresponding thereto and the rules and regulations promulgated thereunder. ARTICLE II Purchase of Shares 2.1 Purchase and Sale of the Shares. On the terms and subject to the conditions set forth herein, on the Closing Date, the Company shall issue, sell, and deliver to each Purchaser, and each Purchaser, severally and not jointly, shall purchase 10 and acquire from the Company, the number of Shares listed opposite its name on Schedule A attached hereto for the consideration set forth opposite such Purchaser's name on Schedule A attached hereto. The aggregate consideration to be paid to the Company by the Purchasers for the Shares shall be equal to Five Hundred Million Dollars ($500,000,000) (the "Purchase Price.") The Purchase Price shall be paid by one or more wire transfers of immediately available funds to the Company's account designated to the Purchasers in writing no later than two (2) business days before the Closing. 2.2 Closing Date. The closing of the Transaction (the "Closing") shall take place at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, at 10:00 a.m., local time, on the second Business Day after the date on which all of the conditions contained in Article VI have been satisfied or waived, as applicable, or at such other place, time, or date as may be mutually agreed to in writing by Purchasers Representatives and the Company. The date of the Closing is referred to herein as the "Closing Date." 2.3 Proceedings at Closing. All actions to be taken and all documents to be executed and delivered by the Company in connection with the consummation of the transactions contemplated at the Closing shall be reasonably satisfactory in form and substance to Purchasers and their counsel, and all actions to be taken and all documents to be executed and delivered by Purchasers in connection with the consummation of the transactions contemplated at the Closing shall be reasonably satisfactory in form and substance to the Company and its counsel. All actions to be taken and all documents to be executed and delivered by all parties hereto at the Closing shall be deemed to have been taken and executed and delivered simultaneously, and no action shall be deemed taken nor any document executed or delivered until all have been taken, executed, and delivered. At the Closing, (i) the Company shall deliver to Purchasers the items in Section 7.1 and (ii) Purchasers shall deliver to the Company the items described in Section 7.2. 2.4 Use of Proceeds. The Company will use the proceeds received from the Initial Financing and the Financing to (i) repay at or prior to the Closing, all the Company's Indebtedness for borrowed money existing immediately prior to the Initial Financing or the Financing, as the case may be (other than with respect to Capital Leases), (ii) pay all expenses of the Company incurred in connection with the negotiation and consummation of the Initial Financing and the Financing (including the associated fees of the lenders), (iii) fund at least $30.0 million of additional cash to the Company's balance sheet, and (iv) distribute to Parent up to $2 billion of proceeds from the Initial Financing and a total of $2.7 billion of proceeds from the Financing. The Company will use the proceeds received from the Transaction to (i) repay all the Company's Indebtedness for borrowed money existing immediately prior to the Closing (other than with respect to Capital Leases and $2.8 billion of the Financing), and (ii) pay all expenses of the Company and the Purchasers incurred in connection with the negotiation and consummation of the Transaction at the Closing (including the amounts due under Section 2(a) of the Management Agreements), and (iii) fund at least $40 million of additional cash to the Company's balance sheet. 11 ARTICLE III. Representations and Warranties of Parent Except as disclosed in (i) the Filed SEC Reports or (ii) the disclosure letter delivered by Parent to the Purchasers concurrently with the execution of this Agreement (the "Company Disclosure Letter) (it being agreed, that any disclosure herein with respect to any particular section of the Agreement shall not be deemed disclosure with respect to another section of the Agreement and no disclosure in any SEC Filed Report shall be deemed disclosed for purposes hereof, unless, in each case, the applicability of such disclosure to the subject matter of such section is clear from a reasonable reading of such disclosure or listing in such section), the Parent hereby makes the following representations and warranties to the Purchasers, each of which is true and correct as of the date hereof: 3.1 Organization and Power. Parent, the Company and each of the Company's Subsidiaries is a corporation duly incorporated, validly existing, and in good standing under the Laws of the jurisdiction of its incorporation. The Company and each of its Subsidiaries has the requisite corporate power and authority to own, lease, or otherwise hold the assets and properties owned, leased, or otherwise held by it and necessary to carry on its business as presently conducted. The Company and each of its Subsidiaries is in good standing and is duly qualified to conduct business as a foreign corporation in each jurisdiction in which the nature of its business or the ownership of property make such qualification necessary, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect. 3.2 Authorization. Each of Parent and the Company has the requisite corporate power to execute and deliver this Agreement and each other Transaction Document to be executed by it in connection with the consummation of the transactions contemplated hereby (the "Company Documents") and, subject to the receipt of the Parent Board Approval, to perform its obligations hereunder and thereunder. The execution and delivery by the Company and Parent of this Agreement and each Company Document to which it is a party and, subject to the receipt of the Parent Board Approval, the performance by each of them of its obligations hereunder and thereunder have been (or at the time of execution will be) duly authorized by all necessary corporate action on its part. This Agreement has been (and each Company Document to which it is a party will be) duly executed and delivered by duly authorized officers of each of the Company and Parent and, assuming the due execution and delivery of this Agreement and each Company Document by the other party or parties hereto or thereto, this Agreement and each Company Document to which it is a party shall constitute valid and binding obligations of the Company and Parent enforceable against the Company and Parent in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other equivalent Laws affecting the enforcement of creditors' rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). 12 3.3 Consents and Approvals. Except as would not reasonably be expected to have a Material Adverse Effect, no consent, approval, waiver, order, or authorization of, or registration, declaration, or filing with, or notice to, any Governmental Entity (including any consent, approval, waiver, or authorization in respect of any Contract or Permit) is required to be obtained or made by or in respect of Parent, the Company or any of the Company's Subsidiaries in connection with the execution and delivery of this Agreement or any Company Document by the Company or Parent, the performance by the Company or Parent of its obligations hereunder and thereunder or the consummation of the transactions contemplated hereby or thereby, other than (i) if required, the filing of a Form D with the SEC and any applicable state securities regulatory authorities, (ii) the filing of premerger notification and report forms under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), or (iii) and any required filings with insurance authorities in New York State. 3.4 No Conflicts. The execution and delivery of this Agreement does not (and of each Company Document will not), and neither the performance by the Company or Parent of its obligations hereunder and thereunder, nor the consummation of the Financing or the transactions contemplated hereby and thereby, will, (i) conflict with the Certificate of Incorporation or bylaws of the Company or Parent, as the case may be, (ii) except as would not reasonably be expected to have a Material Adverse Effect, conflict with, result in any violation of, constitute a default (with or without notice, lapse of time, or both (a "Default")) under, or give rise to a right of termination, cancellation, or acceleration of, or any obligation or to loss of a benefit under, any Contract, or any contract or agreement that is material to the business, assets, financial condition or results of operation of the Company and its Subsidiaries, taken as a whole (iii) violate, constitute a Default under, or cause the forfeiture, impairment, non-renewal, revocation, or suspension of any Permit, (iv) violate any citation, order, judgment, decree, writ, or injunction ("Order") of any Governmental Entity applicable to Parent, the Company or any of the Company's Subsidiaries, (v) violate any Law applicable to Parent, the Company or any of the Company's Subsidiaries, or (vi) except as would not reasonably be expected to have a Material Adverse Effect, result in the creation of any Encumbrance upon any of the assets or properties of Parent, the Company or the Company's Subsidiaries. 3.5 Broker's Fees. No agent, broker, finder, investment banker, financial advisor, or other equivalent Person will be entitled to any fee, commission, or other compensation in connection with the transactions contemplated by this Agreement on the basis of any act or statement made or alleged to have been made by the Company, Parent or any of their respective Affiliates or Representatives, except for the fees and expenses of Stephens Inc., which fees and expenses will be paid out of proceeds from this Transaction in accordance with Section 2.4 hereof. 3.6 Capitalization. (a) The authorized Capital Stock of the Company consists of 400,000,000 shares of Common Stock, of which 1,000 are issued and outstanding as of the date 13 hereof. All of the issued and outstanding shares of Capital Stock of the Company are duly authorized, validly issued, fully paid, and nonassessable, and were not issued in violation of any preemptive rights or any federal or state securities Laws, and are owned beneficially and of record by Parent. Immediately after the Closing, but prior to the issuance of any shares of Common Stock under the Stock Incentive Plan, the Shares will constitute 25% of the outstanding Common Stock of the Company on a fully diluted basis. (b) There are no outstanding options, warrants, and other equivalent rights to purchase Capital Stock of the Company. There are (i) no authorized or outstanding securities, rights (preemptive or other), subscriptions, calls, commitments, warrants, options, or other agreements that give any Person the right to purchase, subscribe for, or otherwise receive or be issued Capital Stock of the Company or any security convertible into or exchangeable or exercisable for Capital Stock of the Company, (ii) no outstanding debt or equity securities of the Company that upon the conversion, exchange, or exercise thereof would require the issuance, sale, or transfer by the Company of any new or additional Capital Stock of the Company (or any other securities of the Company which, whether after notice, lapse of time, or payment of monies, are or would be convertible into or exchangeable or exercisable for Capital Stock of the Company), (iii) no agreements or commitments obligating the Company to repurchase, redeem, or otherwise acquire Capital Stock or other securities of the Company or its Subsidiaries, and (iv) no outstanding or authorized stock appreciation rights, phantom stock, stock rights, or other equity-based interests in respect of the Company. The Company has not issued any voting indebtedness. (c) There is no proxy, stockholders agreement, voting trust, or other agreement or understanding to which the Company, Parent, or to Parent's Knowledge, any other Person, is a party or by which it is bound relating to the voting of any shares of Capital Stock of the Company. 3.7 Subsidiaries and Equity Investments; Joint Ventures. (a) Schedule 3.7 sets forth the name, jurisdiction of incorporation, and the Company's percentage ownership interest of Capital Stock for each direct and indirect Subsidiary of the Company. The Company does not, directly or indirectly, own any Capital Stock of any Person other than the Subsidiaries set forth on Schedule 3.7. The Company is not a direct or indirect participant in any material joint venture or other equivalent arrangement. (b) The outstanding shares of Capital Stock of each Subsidiary of the Company are duly authorized, validly issued, fully paid, and non-assessable, have not been issued in violation of any preemptive rights, and are owned of record and beneficially, directly or indirectly, by the Company, free and clear of all Encumbrances. (c) There are (i) no authorized or outstanding securities, rights (preemptive or other), subscriptions, calls, commitments, warrants, options, or other agreements that give 14 any Person the right to purchase, subscribe for, or otherwise receive or be issued Capital Stock of any Subsidiary of the Company or any security convertible into or exchangeable or exercisable for Capital Stock of any Subsidiary of the Company, (ii) no outstanding debt or equity securities of the Company or its Subsidiaries that upon the conversion, exchange, or exercise thereof would require the issuance, sale, or transfer by the Company or its Subsidiaries of any new or additional Capital Stock of any Subsidiary of the Company (or any other securities, which, whether after notice, lapse of time, or payment of monies, are or would be convertible into or exchangeable or exercisable for Capital Stock of any Subsidiary of the Company), (iii) no agreements or commitments obligating any Subsidiary of the Company to repurchase, redeem, or otherwise acquire Capital Stock or other Securities of the Company or its Subsidiaries and (iv) no outstanding or authorized stock appreciation rights, phantom stock, stock rights, or based interests in respect of any Subsidiary of the Company. No Subsidiary of the Company has issued any voting indebtedness. 3.8 Authorization of Securities. When issued in accordance with the terms of this Agreement, the Shares will be duly authorized, validly issued, fully paid and nonassessable, free and clear of all Encumbrances. 3.9 Investment Company Act. The Company is not, and after giving affect to the issuance of the Shares and the application of the proceeds thereof will not be, an "investment company" within the meaning of Investment Company Act of 1940, as amended. 3.10 Financial Statements. Prior to the date hereof, the Company has provided to the Purchasers (i) the annual combined balance sheets of the Company and its Subsidiaries as of December 31, 2003 and 2002 and the related combined statements of earnings, equity and comprehensive earnings and cash flows for each of the years in the three-year period ended December 31, 2003 (the "Annual Combined Financial Statements"), together with the notes thereto, and the draft report of KPMG LLP thereon which includes a legend indicating that certain transactions would have to be completed before KPMG LLP would be in a position to issue the draft report in final form, (ii) the unaudited combined balance sheet of the Company and its Subsidiaries as at June 30, 2004 reviewed by KPMG LLP (the "Interim Balance Sheet"), and the related combined statements of earnings and cash flows, for the six (6) month period then ended, the "Unaudited Financial Statements"). The Unaudited Financial Statements, together with the Annual Combined Financial Statements are referred to as the "Financial Statements". The Financial Statements have been prepared in accordance with U.S. generally accepted accounting principles consistently applied ("GAAP") and fairly present the combined financial condition, assets and liabilities, results of operations, cash flows, and changes in equity and comprehensive earnings of the Company and its Subsidiaries as of the dates, and for the periods, indicated therein, subject in the case of the Unaudited Financial Statements to lack of footnotes and a statement of changes in equity and comprehensive earnings and normal year end adjustments that will not be material. Since June 30, 2004, there has not been any change of the Company's accounting principles, methods, or policies except as required by GAAP or as would not reasonably be expected to have a 15 Material Adverse Effect. The results and accounts of the entities listed on disclosure Schedule 3.10 are included in the Financial Statements, but have been excluded from the final formation of the Company and its Subsidiaries and are therefore, not subject to the terms of this Transaction. 3.11 Absence of Undisclosed Liabilities, Indebtedness. The Company and its Subsidiaries have no Liabilities that are required to be reflected in, reserved against, or otherwise described in a balance sheet (or the notes thereto) prepared in accordance with GAAP except (i) those Liabilities provided for or reserved against in the Financial Statements (or set forth in the notes thereto), (ii) Liabilities arising in the ordinary course of business consistent with past practice since June 30, 2004, and (iii) Liabilities under this Agreement. Immediately after the Closing, other than the Indebtedness for borrowed money incurred in connection with the Financing and other than with respect to Capital Leases, neither the Company nor any of its Subsidiaries will have any Indebtedness. 3.12 Absence of Certain Changes. Except as set forth in the Unaudited Financial Statements and except as contemplated by the Financing, since June 30, 2004, neither the Company nor any of its Subsidiaries has: (i) terminated or suffered any material amendment of any Material Contract; (ii) suffered any event or circumstance that has had or could reasonably be expected to have a Material Adverse Effect; (iii) other than in the ordinary course of business consistent with past practice, increased the salaries or other compensation of, or made any advance or loan to, any of its current or former directors or executive officers or made any increase in, or any addition to, other benefits to which any of its current or former directors or executive officers may be entitled; (iv) declared, set aside, or paid any dividend or made or agreed to make any other distribution or payment in respect of its Capital Stock or redeemed, purchased, or otherwise acquired or agreed to redeem, purchase, or acquire any of its Capital Stock or other securities; (v) waived any right of material value to the Company or its Subsidiaries; or (vi) incurred any Indebtedness. 3.13 Litigation; Orders. There is no claim or judicial or administrative action, suit, proceeding, or investigation pending or, to Parent's Knowledge, threatened (i) that questions the validity of this Agreement or any other Transaction Document, the performance by the Company or Parent of the obligations to be performed by it hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or (ii) except as would not reasonably be expected to have a Material Adverse Effect, relating to the business of the Company or any of its Subsidiaries (as now conducted or as proposed to be conducted) or materially affecting the Company or any of its Subsidiaries or any of their respective assets or properties. There is no material Order of any Governmental Entity binding on the Company, any of its Subsidiaries, or any of their respective assets or properties. 3.14 Compliance with Laws. The Company and each of its Subsidiaries has complied in all material respects with each Law and Order binding on it or on any of its assets or properties and is not currently in material violation of any such Law or Order, 16 and there have been no notices or Orders of noncompliance issued to the Company of any of its Subsidiaries under or in respect of any such Law. 3.15 Permits. The Company and each of its Subsidiaries owns, holds, possesses, or lawfully uses in its business all approvals, authorizations, certifications, franchises, licenses, permits, and equivalent authorities ("Permits") that are necessary for the conduct of their business as currently conducted or the ownership and use of their assets or properties, in compliance with all Laws, except for those Permits the failure to obtain or loss of which would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in Default under, or has received any notice of any claim of Default in respect of, any such Permits, except as would not reasonably be expected to have a Material Adverse Effect. To Parent's Knowledge, all such Permits are renewable by their respective terms in the ordinary course of business without the need to comply with any special qualification procedures or to pay any amounts other than routine filing fees. 3.16 Contracts. Schedule 3.16 sets forth all of the following Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound: (i) Contracts with any labor union or association representing any employee of the Company or any of its Subsidiaries; (ii) Contracts for the sale of any of the assets of the Company or any of its Subsidiaries other than in the ordinary course of business or for the grant to any Person of any preferential rights to purchase any of their assets; (iii) Contracts containing covenants of the Company or any of its Subsidiaries not to compete in any line of business or with any Person in any geographical area; (iv) Contracts granting any registration or similar right in respect of securities of the Company or any of its Subsidiaries, and (v) Contracts pursuant to which the Company or any of its Subsidiaries acquired the capital stock or assets of another entity and which contain earn-out provisions relating to such acquisition requiring the Company or any of its Subsidiaries to make payments in the future in excess of $250,000 individually or $750,000 in the aggregate. All of the Contracts to which the Company or any of its Subsidiaries is a party or by which it is bound are in full force and effect and are the legal, valid, and binding obligations of the Company and/or its Subsidiaries, enforceable against them in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and equivalent Laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither the Company nor any of its Subsidiaries is in default, except as would not reasonably be expected to have a Material Adverse Effect, in any respect under any Contract of the Company and its Subsidiaries, nor, to Parent's Knowledge, is any other party to any such Contract in default thereunder in any respect. 3.17 Intellectual Property. (a) Schedule 3.17(a) sets forth an accurate and complete list of all material Patents, registered Marks, pending applications for registrations of any Marks, registered 17 Copyrights, and pending applications for registration of Copyrights, owned or filed by the Company or any of its Subsidiaries. (b) The Company or its Subsidiaries is the sole and exclusive owner of all right, title and interest in and to all of the Patents, the registered Marks, and each of the registered Copyrights and pending applications filed by the Company or its Subsidiary therefor, and each of the other Copyrights in any works of authorship prepared by or for the Company or its Subsidiary that resulted from or arose out of any work performed by or on behalf of the Company or by any employee, officer, consultant or contractor of any of them. To Parent's Knowledge and except as would not reasonably be expected to have a Material Adverse Effect, the Company and its Subsidiaries is the sole and exclusive owner of, or has valid and continuing rights to use, sell or license, as the case may be, all other Intellectual Property used, sold or licensed by the Company or its Subsidiaries in their businesses as presently conducted, free and clear of all Encumbrances. (c) To Parent's Knowledge, and except as would not reasonably be expected to have a Material Adverse Effect, the Intellectual Property owned, used, practiced or otherwise commercially exploited by the Company or its Subsidiaries in connection with, their businesses as presently conducted (the "Company Intellectual Property") do not constitute an unauthorized use or misappropriation of any Patent, Copyright, trade secret or other equivalent right, of any Person and do not infringe, constitute an unauthorized use of, or violate any other right of any Person. The Intellectual Property owned by or licensed to the Company or its Subsidiaries, or as to which the Company or its Subsidiaries otherwise possess valid and continuing rights for use, includes all of the material intellectual property rights necessary to enable the Company and its Subsidiaries to conduct their businesses in the manner in which such businesses are currently being conducted. (d) Neither the Company, nor any of its Subsidiaries: (i) is a party to any suit, action or proceeding which involves a claim of infringement or misappropriation of any Patent, Copyright or trade secret right by the Company or any of its Subsidiaries against any third party; (ii) has provided written notice to any third party alleging infringement or misappropriation of the Company's and its Subsidiaries' Patents, Copyrights or trade secrets; (iii) is a party to any suit, action or proceeding which involves a claim of infringement or misappropriation of any Patent, Copyright or trade secret by a third party against the Company or any of its Subsidiaries; (iv) except as would not reasonably be expected to have a Material Adverse Effect, has received any written notice from any third party alleging infringement or misappropriation of such third party's Patents, Copyrights or trade secrets. To Parent's Knowledge and except as would not reasonably be expected to have a Material Adverse Effect, the manufacturing, marketing, licensing, use or sale of the products or the performance of the services offered by the Company and its Subsidiaries in the ordinary course of its respective businesses as presently conducted do not currently infringe, and have not infringed, upon any Patent, Copyright or trade secret right of any third party. 18 (e) No trade secret or any other non-public, proprietary information material to the Business as presently conducted has been authorized to be disclosed or, to Parent's Knowledge, has been actually disclosed by the Company or any of its Subsidiaries to any employee or any third party other than pursuant to a non-disclosure agreement or employment policy restricting the disclosure and use of such trade secret or non-public proprietary information. Except as would not reasonably be expected to have a Material Adverse Effect, the Company and its Subsidiaries have taken adequate security measures to protect the secrecy and confidentiality of all trade secrets and any other material confidential information of the Company and its Subsidiaries which measures are reasonable in the industry in which the Company and its Subsidiaries operate. (f) The Company and its Subsidiaries have not received written notice from any current or prior officers, employees, or Contractors of the Company and its Subsidiaries claiming any ownership interest in any Company Intellectual Property as a result of having been involved in the development of such property while employed by or performing services for the Company or its Subsidiaries. (g) Except as would not reasonably be expected to have a Material Adverse Effect, the Company's unmodified version of its material software that is marketed and licensed by the Company and its Subsidiaries to its customers (the "Products") conforms in all material respects with the documentation prepared, marketed and licensed by the Company in respect of such Products. Except as would not reasonably be expected to have a Material Adverse Effect: (i) there are no defects, malfunctions or nonconformities in the unmodified version of the Products that cause the unmodified version of the Products, as properly installed, not to perform the material functions for which they are intended, on the whole, as provided in the Company's documentation, and (ii) there are no errors in any documentation, specifications, manuals, and user guides associated with or used or produced in the development, maintenance or marketing of the Company Intellectual Property. 3.18 Affiliate Transactions. Except as contemplated by the Intercompany Agreements, and except for arrangements between the Parent or its Subsidiaries (other than the Company and its Subsidiaries) on the one hand, and the Company and its Subsidiaries on the other hand, which do not involve payments by any party of more than $500,000 annually in the aggregate and which do not restrict the ability of the Company and its Subsidiaries to engage in any line of business in any geographic area, no stockholder, officer, or director of the Company or any of its Subsidiaries, or to Parent's Knowledge, any member of his or her immediate family, or any Person controlled by any of the foregoing Persons (collectively, "Related Persons") (i) owes any amount to the Company or any of its Subsidiaries nor does the Company or any of its Subsidiaries owe any amount (other than employment compensation or benefits), or has it committed to make any loan or extend or guarantee credit to or for the benefit of, any Related Person, (ii) has made any claim or cause of action or any action, suit, or proceeding whatsoever against the Company or any of its Subsidiaries, (iii) to Parent's Knowledge, (other than through stock ownership in a public company) has any direct or indirect ownership interest in, or is an officer, director, employee, consultant, or agent of, any Person that 19 has a business relationship with the Company (or any of its Subsidiaries) or that competes with the Company or any of its Subsidiaries, or (iv) owns, directly or indirectly, in whole or in part, any real property, leasehold interests, or other property or any Permits, the use of which is necessary for the conduct of the business of the Company or its Subsidiaries as currently conducted and as proposed to be conducted. To the Company's Knowledge, no Related Person has any direct or indirect (other than through stock ownership in a public company) interest in any Contract to which the Company or its Subsidiaries is a party or by which it is bound. 3.19 Assets and Properties. The Company and each of its Subsidiaries has good and marketable title to its assets and properties, and a valid leasehold interest in leasehold estates, free and clear of all Encumbrances, other than (i) Permitted Encumbrances and (ii) those that have arisen in the ordinary course of business consistent with past practice and that do not materially impair the ownership or use of such assets or properties. Such assets and properties are in such operating condition and repair as is suitable for the uses for which they are used in the business of the Company and its Subsidiaries, are not subject to any condition which materially interferes with the use thereof by the Company or its Subsidiaries, as the case may be, and, together with rights under the Intercompany Agreements, constitute all assets, properties, interests in properties and rights necessary to permit the Company and its Subsidiaries to carry on their business after the Closing substantially as conducted by the Company and its Subsidiaries prior thereto. 3.20 Insurance. The Company and each of its Subsidiaries has in full force and effect all insurance policies, with coverage, in customary amounts (subject to reasonable deductibles), sufficient to provide adequate insurance coverage for all of the assets and properties of the Company and its Subsidiaries for all material risks in compliance with all applicable Laws, Orders, and Permits. There are no pending claims against any such insurance policy as to which the insurers have denied liability. 3.21 Tax Matters. (a) (i) All income, franchise and other material Tax Returns required to be filed by or with respect to the Company, any of its Subsidiaries or any Affiliated Group of which the Company or any of its Subsidiaries is or was a member have been properly prepared and duly and timely filed with the appropriate taxing authorities in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings); (ii) all amounts of Taxes due and payable by or with respect to the Company, any of its Subsidiaries or any Affiliated Group of which the Company or any of its Subsidiaries is or was a member for any periods prior to (A) the date of this Agreement have been fully and timely paid or accrued on the consolidated balance sheet of the Company and its Subsidiaries dated November 30, 2004 previously delivered by Parent to Purchasers and attached hereto as Schedule 3.21(a)(ii)(A), and (B) the last day of the month immediately preceding the Closing Date will have been fully and timely paid or accrued in the financial statements delivered to Purchasers pursuant to Section 5.11 (provided that such accruals are made 20 consistent with past practice, in accordance with GAAP and reflect only Taxes properly allocable to the Company and its Subsidiaries (as opposed to those allocable to Parent and its Subsidiaries other than the Company and its Subsidiaries), unless being contested in good faith by the Company or its Subsidiaries (such contested matters and the exposure thereunder as of the date of this Agreement are set forth on Schedule 3.21(a) and such contested matters arising after the date of this Agreement and prior to the Closing Date shall be adequately reserved for in the financial statements delivered to Purchasers pursuant to Section 5.11); and (iii) with respect to any taxable period prior to the Closing Date for which (A) Tax Returns have not yet been filed, or (B) Taxes not yet due or owing, the Company and its Subsidiaries will have made due and sufficient current accruals for any such Taxes on the financial statements delivered to Purchasers pursuant to Section 5.11. (b) The Company and each of its Subsidiaries have complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes and have duly and timely withheld from employee salaries, wages, other compensation, and other amounts of Taxes and have paid over to the appropriate taxing authorities all amounts required to be so withheld and paid over for all periods (including portions thereof) ending on or prior to the Closing Date under all applicable Laws. (c) The Company has delivered or made available to Purchasers true and complete copies of (i) all federal, state, local, and foreign income and franchise Tax Returns of the Company and each of its Subsidiaries (or, in the case of Tax Returns filed for an Affiliated Group, the portion of such consolidated Tax Returns relating to the Company and its subsidiaries) relating to the taxable periods since December 31, 2000, and (ii) any audit report issued within the last three years relating to Taxes due from or in respect of the Company or any of its Subsidiaries. (d) To Parent's Knowledge, with respect to the Company and its Subsidiaries no claim has been made by a taxing authority in a jurisdiction where the Company or any of its Subsidiaries does not file a type of Tax Return such that it is or may be subject to that type of Tax in that jurisdiction. (e) To Parent's Knowledge, with respect to the Company and its Subsidiaries, there are no current audits or investigations by any taxing authority in progress, nor has the Company or any of its Subsidiaries received written notice from any taxing authority that it intends to conduct such an audit or investigation. No agreement, waiver or other document or arrangement extending or having the effect of extending the period for assessment or collection of Taxes (including any applicable statute of limitation), has been executed or filed with the IRS or any other taxing authority by or on behalf of the Company or any of its Subsidiaries and no power of attorney in respect of any Tax matter is currently in force. (f) Neither the Company, any of its Subsidiaries nor any other Person on any of their behalf has (i) agreed to or is required to make any adjustments pursuant to Section 481(a) of the Code or any similar provision of Law by reason of a change in 21 accounting method initiated by the Company or any of its Subsidiaries or has any knowledge that the IRS or any other taxing authority has proposed any such adjustment or change in accounting method, or has any application pending with any taxing authority requesting permission for any changes in accounting methods that relate to the business or operations of the Company or any of its subsidiaries, or (ii) executed or entered into a closing agreement pursuant to Section 7121 of the Code or any predecessor provision thereof or any similar provision of Law in respect of the Company or any of its Subsidiaries. (g) Neither the Company nor its Subsidiaries is a party to any tax sharing agreement or arrangement, or any other agreement relating to the allocation of responsibility for any Tax, pursuant to which it will have any obligation to make any payments after the Closing. (h) There are no Encumbrances (other than Permitted Encumbrances) as a result of any unpaid Taxes upon any of the assets of the Company or its Subsidiaries. (i) Neither the Company nor any of its Subsidiaries has constituted a "distributing corporation" or a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares qualifying for tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to the date of this Agreement or (ii) in a distribution that could otherwise constitute part of a "plan" or "series of related transactions" (within the meaning of Section 355(e) of the Code) in conjunction with this acquisition. All distributions of shares by, or consisting of shares of, the Company, any of its Subsidiaries or any member of an Affiliated Group of which the Company or any of its Subsidiaries is or was a member, purporting to qualify for tax-free treatment under Section 355 of the Code so qualified. (j) Neither the Company nor any of its Subsidiaries has constituted a "U.S. real property holding company" within the meaning of Section 897(c)(2) of the Code at any time during the last five years. (k) To Parent's knowledge, after due inquiry, neither the Company nor any of its Subsidiaries has engaged in any "reportable transaction" within the meaning of Treasury Regulation Section 1.6011-4. (l) As of the date of this Agreement, the Company and its Subsidiaries, in the aggregate, own intangible assets that are amortizable for federal income tax purposes with a tax basis equal to at least $1,000,000,000. 3.22 Employee Benefit Plans. (a) Schedule 3.22(a) sets forth a true and complete list of all "employee benefit plans" (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), and any employee benefit plans, agreements, arrangements, programs or payroll practices (including, without limitation, severance 22 pay, vacation pay, company awards, salary continuation for disability, sick leave, retirement, deferred compensation, equity-based, bonus or other incentive compensation, stock purchase arrangements or policies, hospitalization, medical insurance, life insurance, and scholarship programs) maintained by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries contributes or is obligated to contribute thereunder in respect of any current or former employee of the Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries could otherwise have any liability (contingent or otherwise), including any liability that results from the Company or any of its Subsidiaries being considered a single employer or under common control with any entity (whether incorporated or not) under Section 414(b), (c), (m) or (o) of the Code (an "ERISA Affiliate") (in each case, any of the foregoing, whether domestic or foreign "Employee Benefit Plans"). The Company disclosure letter identifies, in separate categories, Employee Benefit Plans that are (i) subject to Sections 4063 and 4064 of ERISA ("Multiple Employer Plans"), (ii) multiemployer plans (as defined in Section 4001(a)(3) of ERISA) ("Multiemployer Plans"), or (iii) "benefit plans" within the meaning of Section 5000(b)(1) of the Code providing continuing benefits after the termination of employment (other than as required by Section 4980B of the Code, Part 6 of Title I of ERISA or comparable state or local Laws and at the former employee's or his or her beneficiary's sole expense). (b) Except as would not reasonably be expected to result in a Material Adverse Effect, each of the Employee Benefit Plans intended to qualify under Section 401 of the Code ("Qualified Plans") so qualify and the trusts maintained thereto are exempt from federal income taxation under Section 501 of the Code, and, to Parent's Knowledge, nothing has occurred in respect of the operation of any such plan that could cause the loss of such qualification or exemption or the imposition of any liability, penalty, or tax under ERISA or the Code. (c) All contributions and premiums required by Law or by the terms of any Employee Benefit Plan have been timely made (without regard to any waivers granted in respect thereof) to any funds or trusts established thereunder or in connection therewith, and no accumulated funding deficiencies exist in any of such plans subject to Section 412 of the Code. (d) The benefit liabilities (as defined in Section 4001(a)(16) of ERISA), of each of the Employee Benefit Plans subject to Title IV of ERISA using the actuarial assumptions that would be used by the Pension Benefit Guaranty Corporation (the "PBGC") in the event it terminated each such plan do not exceed the fair market value of the assets of each such plan. The liabilities of each Employee Benefit Plan that has been terminated or otherwise wound up, have been fully discharged in full compliance with applicable Law. (e) During the 12-month period ending on the date hereof, no "reportable event" (as defined in Section 4043 of ERISA and the regulations thereunder) for which the 30-day reporting requirement has not been waived or extended has occurred with 23 respect to any of the Employee Benefit Plans subject to Title IV of ERISA, nor has any event requiring notice to be provided under Section 4041(c)(3)(C) or 4063(a) of ERISA. (f) There has been no violation of ERISA in respect of the filing of applicable returns, reports, documents, and notices regarding any of the Employee Benefit Plans with the Secretary of Labor or the Secretary of the Treasury or the furnishing of such notices or documents to the participants or beneficiaries of the Employee Benefit Plans or Pension Plans that would reasonably be expected to result in a Material Adverse Effect. (g) True and complete copies of the following documents, in respect of each of the Employee Benefit Plans that, after the Closing, the Company or any if its Subsidiaries will maintain, contribute to, or have any liability with respect to (as applicable), have been delivered to Purchaser (i) any plans and related trust documents, and all amendments thereto, (ii) the most recent Forms 5500 for the past three years and schedules thereto, (iii) the most recent financial statements and actuarial valuations for the past three years, (iv) the most recent IRS determination letter, (v) the most recent summary plan descriptions (including letters or other documents updating such descriptions), and (vi) written descriptions of all material non-written agreements relating to such Employee Benefit Plans. (h) There is no pending claim, action, suit, or proceeding that has been asserted or instituted against any Employee Benefit Plan , the assets of any such plans, the Company, any of its Subsidiaries, or the plan administrator or any fiduciary of the Employee Benefit Plans in respect of the operation of such plans (other than routine, uncontested benefit claims) and no Employee Benefit Plan is under audit or is the subject of any audit or investigation by any Governmental Entity, and there are no facts or circumstances that could form the basis for any such claim, action, suit, proceeding or audit, in each case, except to the extent it would not reasonably be expected to result in a Material Adverse Effect. (i) Each of the Employee Benefit Plans has been maintained, in all material respects, in accordance with its terms and all provisions of applicable Law. All amendments and actions required to bring each of the Employee Benefit Plans into conformity in all material respects with all of the applicable provisions of ERISA and other applicable Laws have been made or taken except to the extent that such amendments or actions are not required by Law to be made or taken until a date after the Closing Date. Except to the extent it would not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its Subsidiaries has incurred or reasonably expects to incur, either directly or indirectly (including as a result of an indemnification obligation), any liability under Title I or IV of ERISA or the penalty, excise tax or joint and several liability provisions of the Code or any foreign law or regulation relating to employee benefit plans (including, without limitation, Section 406, 409, 502(i), 502(1), 4069 or 42 12(c) of ERISA, or Section 4971, 4975 or 4976 of the Code), or under any agreement, instrument, statute, rule or legal requirement pursuant to or under which the Company or any of its Subsidiaries or any Employee Benefit Plan or Pension Plan has agreed to indemnify or is required to indemnify any person against 24 liability incurred under, or for a violation or failure to satisfy the requirements of any such legal requirement, and to the knowledge of the Company, no event, transaction or condition has occurred, exists or is expected to occur which could result in any such liability to the Company or any of its Subsidiaries after the Closing. (j) The Company, each of its Subsidiaries, and any ERISA Affiliate that maintains a "benefits plan" (within the meaning of Section 5000(b)(1) of ERISA) have complied with the notice and continuation requirements of Section 4980B of the Code or Part 6 of Title I of ERISA and the applicable regulations thereunder, except to the extent that failure to so comply would not reasonably be expected to result in a Material Adverse Effect. (k) None of the Company, any of its Subsidiaries, any ERISA Affiliate or any organization to which any is a successor or parent corporation, has divested any business or entity maintaining or sponsoring a defined benefit pension plan having unfunded benefit liabilities (within the meaning of Section 4001(a)(18) of ERISA) or transferred any such plan to any Person other than the Company, any of its Subsidiaries, or any ERISA Affiliate during the five-year period ending on the Closing Date. (l) To Parent's Knowledge, neither the Company nor any of its Subsidiaries nor any "party in interest" or "disqualified person" in respect of the Employee Benefit Plans has engaged in a "prohibited transaction" (within the meaning of Section 4975 of the Code or Section 406 of ERISA) that would not reasonably be expected to result in a Material Adverse Effect. (m) None of the Company, any Subsidiary, or any ERISA Affiliate has terminated any Employee Benefit Plan subject to Title IV of ERISA, or incurred any outstanding liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA and no Person (including without limitation the Pension Benefit Guaranty Corporation) has instituted any proceeding to terminate any Employee Benefit Plan or Pension Plan or appoint a trustee to administer any such Employee Benefit Plan or Pension Plan, in each case, except to the extent it would not reasonably be expected to result in a Material Adverse Effect. (n) Other than the granting of stock options pursuant to the Stock Incentive Plan, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any payment becoming due to any employee of Company or any of its Subsidiaries, (ii) increase any benefits otherwise payable under any Employee Benefit Plan or Pension Plan, or (iii) result in the acceleration of the time of payment, funding or vesting of any such benefits. (o) No stock or other security issued by Company or any of its Subsidiaries forms or has formed a material part of the assets of any Employee Benefit Plan. (p) There is no contract, agreement, plan or arrangement covering any Person that, individually or collectively, could give rise to the payment of any amount after the 25 Closing Date by the Company or any Subsidiary that would not be deductible by the party making such payment by reason of Section 280G of the Code, or would constitute compensation in excess of the limitation set forth in Section 162(m) of the Code. (q) Except to the extent it would not reasonably be expected to result in a Material Adverse Effect, each Foreign Plan, to the extent requiring qualification under any applicable governmental laws or authority, is so qualified. According to the actuarial assumptions and valuations most recently used for the purposes of funding each Foreign Plan (or, if the same has no such assumptions and valuations or is unfunded, according to actuarial assumptions and valuations in use by the PBGC on the date hereof), as of October 12, 2004 the total amount or value of the funds available under each such Foreign Plan to pay benefits accrued thereunder or segregated in respect of such benefits, together with any reserve or accrual with respect thereto, exceeded the present value of all benefits (contingent or otherwise) accrued as of such date of all participants and past participants therein in respect of which the Company or any of its Subsidiaries has or would have after the Closing Date any obligation. For purposes hereof, the term "Foreign Plan" shall mean an Employee Benefit Plan with respect to current or former employees of the Company or any of its Subsidiaries employed outside the United States. 3.23 Labor and Employment Matters. (a) Except with respect to the Company's Kordoba Subsidiary, neither the Company nor any of its Subsidiaries is a party to any labor or collective bargaining agreement, and no employees of the Company or any of its Subsidiaries are represented by any labor organization. Within the preceding three years, there have been no material representation or certification proceedings, or petitions seeking a representation proceeding, pending or, to Parent's Knowledge, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. Within the preceding three years, to Parent's Knowledge, there have been no organizing activities involving the Company or any of its Subsidiaries in respect of any group of employees of Company or any of its Subsidiaries. (b) There are no strikes, work stoppages, slowdowns, lockouts, material arbitrations, or material grievances or other material labor disputes pending or, to Parent's Knowledge, threatened against or involving the Company or any of its Subsidiaries. (c) There are no material unfair labor practice charges, grievances or complaints pending or, to Parent's Knowledge, threatened by or on behalf of any employee or group of employees of the Company or its Subsidiaries. There are no complaints, charges, or claims against the Company or its Subsidiaries pending or, to Parent's Knowledge, threatened to be brought or filed with any Governmental Entity based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment of any individual by the Company or its Subsidiaries. 26 (d) To Parent's Knowledge, no officer or key employee, or any group of key employees, currently intends to terminate his, her, or their employment with the Company or any of its Subsidiaries. The employment of each officer and U.S. employee of the Company and its Subsidiaries is terminable at the will of the Company or such Subsidiary, as the case may be. To Parent's Knowledge, no officer, employee, agent, or consultant of the Company or any of its Subsidiaries is in violation of any material term of any employment, consultant, non-disclosure, non-competition, confidentiality, or other equivalent agreement. 3.24 Real Property. (a) Schedule 3.24(a) sets forth and complete list of (i) the real property owned in fee by the Company or any of its Subsidiaries (the "Owned Real Property") and (ii) all real property leased by the Company or any of its Subsidiaries (the "Leased Real Property" and together with the Owned Real Property and all other rights or interests of the Company or its Subsidiaries in real property, the "Real Property"). None of the real property reflected in the Interim Balance Sheet has been disposed of and no real property has been acquired by the Company or any of its Subsidiaries since the date of the Interim Balance Sheet. (b) The Company and each of its Subsidiaries has good and marketable title in fee simple to all Owned Real Property, and a valid leasehold interest in all Leased Real Property, in each case free and clear of all Encumbrances, except for Permitted Encumbrances. (c) Each of the leases and subleases relating to the Leased Real Property is in full force and effect, there is no material default by the Company or any of its Subsidiaries or, to Parent's Knowledge, by the lessor under any such lease or sublease. (d) The structures, plants, improvements, systems, and fixtures located on each parcel of Owned Real Property and, to Parent's Knowledge, Leased Real Property comply in all material respects with all Laws, and are in good operating condition and repair, ordinary wear and tear excepted. Each such parcel of Owned Real Property and, to Parent's Knowledge, Leased Real Property, conforms in all material respects with all covenants or restrictions of record and conforms with all applicable building codes and zoning requirements and there is not, to Parent's Knowledge, any proposed change in any such governmental or regulatory requirements or in any such zoning requirements. 3.25 Environmental Matters. Except as would not reasonably be expected to result in a Material Adverse Effect: (a) The operations of the Company and each of its Subsidiaries are and have been in compliance with all applicable Environmental Laws, including obtaining, maintaining in good standing, and complying with all Permits required by Environmental Laws ("Environmental Permits"), and no action or proceeding is pending or, to Parent's Knowledge, threatened to revoke, modify, or terminate any such Environmental Permit, 27 and, to Parent's Knowledge, no facts, circumstances, or conditions currently exist that could adversely affect such continued compliance with Environmental Laws and Environmental Permits or require currently unbudgeted capital expenditures to achieve or maintain such continued compliance with Environmental Laws and Environmental Permits. (b) Neither the Company nor any of its Subsidiaries is the subject of any outstanding written order or Contract with any Governmental Entity or other person in respect of any (i) Environmental Laws, (ii) Remedial Action, or (iii) Release or threatened Release of a Hazardous Material. (c) No claim has been made or is pending, or to Parent's Knowledge, threatened against the Company or any of its Subsidiaries alleging either or both that the Company or any of its Subsidiaries may be in violation of any Environmental Law or Environmental Permit or may have any liability under any Environmental Law. (d) No fact, circumstance, or condition exists in respect of the Company or any of its Subsidiaries or any property currently or formerly owned, operated, or leased by the Company or any of its Subsidiaries or any property to which the Company or any of its Subsidiaries arranged for the disposal or treatment of Hazardous Materials that could reasonably be expected to result in the Company or any Subsidiary incurring unbudgeted Environmental Costs and Liabilities. (e) There is no investigation of the business, operations, or Real Property of the Company or any of its Subsidiaries or, to Parent's Knowledge, previously owned, operated, or leased property of the Company or its Subsidiaries pending or, to Parent's Knowledge, threatened that could lead to the imposition of any Environmental Costs and Liabilities or Encumbrances under any Environmental Law. (f) To Parent's Knowledge, there is not located at any of the Real Property any (i) underground storage tanks, (ii) asbestos-containing material, or (iii) equipment containing polychlorinated biphenyls. (g) The transactions contemplated by this Agreement do not trigger any requirements under any federal, state, local or foreign laws, statutes, codes, ordinances, rules, regulations or other legal requirements relating to the environment or natural resources which condition the transfer of assets, real estate or stock on the approval of or the need to notify a Governmental Entity having jurisdiction over the environment or natural resources, including, but not limited to the New Jersey Industrial Site Recovery Act and the Connecticut Transfer Act. 3.26 Material Customers. (a) The top ten (10) customers of the Company and its Subsidiaries, and annual revenues related to such customers for each of (i) the 2004 fiscal year as of October 31, 2004, and (ii) the fiscal year ended December 31, 2003, are listed by division 28 of the Company on Schedule 3.26(a) (the "Material Customers"). To Parent's Knowledge, no Material Customer of the Company or its Subsidiaries has given the Company or its Subsidiaries any written notice terminating, suspending, or reducing in any material respect, or specifying an intention to terminate, suspend, or reduce in any material respect in the future, or otherwise reflecting an adverse change in, the business relationship between such customer and the Company or its Subsidiaries, there has not been any materially adverse change in the business relationship of the Company or its Subsidiaries with any such customer. (b) Schedule 3.2(b) sets forth the names and annual revenues for each of (i) the 2004 fiscal year as of September 30, 2004, and (ii) the fiscal year ended December 31, 2003, of the Material Customers of the Company or any of its Subsidiaries which have cancelled or terminated their relationships with the Company during the twelve months prior to the date of this Agreement. 3.27 Corporate Records. The Company has delivered or made available to Purchaser true and complete copies of its Certificate of Incorporation and bylaws (in each case as amended to the date of this Agreement). The minute books previously made available to Purchaser of the Company and each of its Subsidiaries contain complete and accurate records of all meetings and accurately reflect all other corporate action of the stockholders and board of directors (including committees thereof) of the Company and its Subsidiaries to the date hereof, including all amendments and corrections. ARTICLE IV Representations and Warranties of Purchasers Each of the Purchasers, severally as to itself only, and not jointly, hereby makes the following representations and warranties to the Company, each of which is true and correct as of the date hereof: 4.1 Organization. Such Purchaser is a limited partnership, corporation or a limited liability company duly formed, validly existing, and in good standing under the Laws of the state of its incorporation or formation, as the case may be. 4.2 Authorization. Such Purchaser has the requisite partnership, corporate or limited liability company power, as the case may be, to execute and deliver this Agreement and each other Transaction Document to be executed by it in connection with the consummation of the transactions contemplated hereby (the "Purchaser Documents") and to perform its obligations hereunder and thereunder. The execution and delivery by such Purchaser of this Agreement and each Purchaser Document and the performance by it of its obligations hereunder and thereunder have been (or at the time of execution will be) duly authorized by all necessary partnership, corporate or limited liability company action, as the case may be, on the part of such Purchaser. This Agreement has been (and each Purchaser Document will be) duly executed and delivered by such Purchaser and, assuming the due execution and delivery of this Agreement and each Purchaser Document by the other party or parties hereto or thereto, constitutes or will constitute a 29 valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, or other equivalent Laws affecting the enforcement of creditors' rights in general and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity). 4.3 Consents and Approvals. Except as would not have a Purchaser Material Adverse Effect, no consent, approval, waiver, order, or authorization of, or registration, declaration, or filing with, or notice to, any Person or Governmental Entity is required to be obtained or made by or in respect of, such Purchaser in connection with the execution and delivery of this Agreement or any Purchaser Document by such Purchaser, the performance by such Purchaser of its obligations hereunder and thereunder, or the consummation of the transactions contemplated hereby or thereby, other than the filing of premerger notification and report forms under the HSR Act and any required filings with insurance authorities in New York State. 4.4 No Conflicts. Except as would not have a Purchaser Material Adverse Effect, the execution and delivery of this Agreement does not (and each Purchaser Document will not), and neither the performance by such Purchaser of its obligations hereunder and thereunder, nor the consummation of the transactions contemplated hereby and thereby, will (i) conflict with the organizational and partnership documents of such Purchaser or (ii) violate any Order of any Governmental Entity or Law applicable to such Purchaser. 4.5 Brokers' Fees. Neither such Purchaser nor any Person acting on its behalf has agreed to pay any commission, finder's or broker's fee, or equivalent payment in connection with the transactions contemplated by this Agreement or any matter related hereto to any Person for which the Company or any of its Subsidiaries will be liable, except for the fees and expenses of Bear Stearns & Co., Inc., which fees and expenses will be paid out of proceeds from this Transaction in accordance with Section 2.4 hereof. 4.6 Securities Law Matters; Valid Offering. Such Purchaser is acquiring the Shares for investment for its own account, and not with a view to, or for sale in connection with, any distribution thereof. Such Purchaser (either alone or together with its advisors) has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Shares and is capable of bearing the economic risks of such investment. Such Purchaser is an "accredited investor" as defined in Rule 501(a) of Registration D under the Securities Act. Such Purchaser understands and acknowledges that the Shares have not been registered under the Securities Act, or the securities Laws of any state or foreign jurisdiction and, unless so registered, may not be offered, sold, transferred, or otherwise disposed of except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and any applicable securities Laws of any state or foreign jurisdiction. THL further represents and warrants to the Parent as to the matters set forth on Schedule 4.6(a). TPG further represents and warrants to the Parent as to the matters set forth on Schedule 4.6(b). 30 4.7 Sufficiency of Funds. Such Purchaser will have at Closing sufficient funds available to pay its portion of the Purchase Price, as set forth on Schedule A attached hereto. ARTICLE V Covenants 5.1 Access to Information. Between the date hereof and the Closing Date, upon prior notice from the Purchasers Representatives to the Company, the Company will afford to the Purchasers and their representatives reasonable access during normal business hours to the employees, assets, facilities, and the books and records of the Company and its Subsidiaries so as to afford Purchasers a full opportunity to make such review, examination, and investigation of the Company and its Subsidiaries as Purchasers may desire to make. Purchasers will be permitted to make extracts from or to make copies of such books and records as may be reasonably necessary in connection therewith. Prior to the Closing, the Company will (i) promptly furnish or cause to be furnished to Purchasers and their representatives such financial and operating data and other information relating to the Company and its Subsidiaries as Purchasers or their representatives may reasonably request (including, at the request of the Purchasers and so long as the Purchasers execute all releases, waivers and other agreements customary and reasonably requested by KPMG, the work papers related to the audit of the Company's financial statements for the year ended December 31, 2004), and (ii) instruct its officers and key employees and its counsel and independent accountants to cooperate with Purchasers and their representatives in its investigation of the Company. 5.2 Conduct of the Business. (a) Except as approved by Purchasers Representatives in writing, between the date hereof and the Closing Date, the Company will, and will cause its Subsidiaries to, and Parent shall cause the Company and its Subsidiaries to (i) conduct the business of the Company and its Subsidiaries only in the ordinary course of business consistent with past practice, and (ii) use reasonable best efforts to cooperate with respect to and consummate the Financing. (b) Between the date hereof and the Closing Date, without limiting the generality of Section 5.2(a), and except as otherwise expressly provided in this Agreement, without the prior written consent of the Purchasers Representatives, neither the Company nor any of its Subsidiaries will take any of the following actions, and Parent shall cause the Company and its Subsidiaries to refrain from taking any such actions: (i) make or incur any capital expenditure (including with respect to internally developed and purchased software) that has not been approved in writing or budgeted for prior to the date hereof and, in either case, disclosed to the Purchasers prior to the date hereof, and which are, in the aggregate, in excess of $50,000,000, provided, that, if the Closing does not occur by April 1, 2005, such aggregate amount shall be increased by $50,000,000; 31 (ii) acquire, by merger or consolidation, or by purchase of, or investments in, all or substantially all of the assets or stock of, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof (or enter into any agreement other than any non-binding LOI with respect thereto) in excess of $50,000,000 million prior to Closing in the aggregate; provided that, if the Closing does not occur by April 1, 2005, such aggregate amount shall be increased by $50,000,000; (iii) amend the certificate of incorporation or bylaws of the Company or any of its Subsidiaries; (iv) other than in connection with the Financing, sell, lease, encumber, transfer, or otherwise dispose of any properties or assets, real, personal or mixed other than in the ordinary course of business consistent with past practice; except that the scope of this covenant shall not include the granting of Software licenses or the provision of services by the Company or any Subsidiary; (v) other than in connection with the Financing, create, incur, assume or guarantee any Indebtedness in excess of $50,000,000 in the aggregate; provided that, if the Closing does not occur by April 1, 2005, such aggregate amount shall be increased by $50,000,000 (provided that any such Indebtedness incurred pursuant to this clause (v) shall be for the purpose of effecting acquisitions); (vi) except as required in connection with the Financing, prepay any of its Indebtedness or Capital Leases (other than mandatory and regularly scheduled payments of principal and interest on existing Capital Leases); (vii) authorize or issue, or commit to authorize or issue any equity securities or securities convertible into or exchangeable for any equity securities of the Company or its Subsidiaries, or grant or issue any options, warrants, rights, agreements or commitments with respect to the issuance of any such equity securities; (viii) enter into any contract or transaction between the Company and any of its Subsidiaries on the one hand and any stockholder of the Company or its Affiliates or any other Related Person on the other; (ix) (A) split, combine, or reclassify any shares of its capital stock; (B) declare, set aside, or pay any dividend or make any other distribution or payment (whether in cash, stock, or property or any combination thereof) in respect of its capital stock or to its stockholders (other than (i) with respect to Taxes properly allocated to the Company or its Subsidiaries and arising in any period (or portion thereof) ending on or before the Closing Date, (ii) amounts due related to intercompany payments or to fund intercompany allocations by and among Parent and its Subsidiaries (other than the Company and its Subsidiaries) and the Company and its Subsidiaries in a manner and amount consistent with past practices and, with respect to Corporate Services only, in 32 amounts not to exceed $4,200,000 per month, or (iii) the Parent Distribution (collectively, the "Excepted Payments")); (C) make any other actual, constructive, or deemed distribution in respect of any shares of its capital stock or otherwise make any payments (other than the Excepted Payments) to stockholders in their capacity as such; or (D) redeem, repurchase, or otherwise acquire any securities of the Company or any of its Subsidiaries; (x) waive any material rights under any Material Contract; (xi) fail to comply in any material respect with any Law applicable to the Company or any of its Subsidiaries or their respective assets or properties; (xii) take any action, or knowingly omit to take any action, that would or would reasonably be expected to result in any of the conditions to the obligations of Purchasers set forth in Section 6.2 not being fully satisfied; (xiii) increase the rate of compensation of, or pay or agree to pay any bonus or benefit to, its directors, officers or senior executives, except as may be required by any existing plan, and except in the ordinary course of business, consistent with past practice, as part of the Company's and its Subsidiaries' annual merit cycle provided that, in no event shall any bonuses be paid for services rendered in 2004 (or agreements to pay any such bonuses be entered into) in excess of $55,000,000 in the aggregate; (xiv) enter into, adopt or amend in any material respect any written employment, severance or change of control agreement or, except as required by law, adopt or modify any employee retention program or Benefit Plan, make any contributions to any Benefit Plan not within the ordinary course of business consistent with past practices, or take any action that results in an acceleration of vesting or timing of any employee benefit (other than by virtue of the existing terms thereof); (xv) enter into any covenants not to compete or any other contracts or agreements which limit or restrict the ability of the Company or its Subsidiaries to compete in any line of business in which they currently operate other than such contracts or agreements entered into in the ordinary course of business consistent with past practice; (xvi) change any material election related to Taxes (unless required by Law), settle or compromise any material Tax liability or agree to any material adjustment of any Tax attribute, or fail to file any Tax Return when due or fail to cause such Tax Returns when filed to be complete and accurate in all material respects; (xvii) accelerate receivables or delay payables in a manner not consistent with past practice; 33 (xviii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of either of the Company or of any if its Subsidiaries or otherwise sell all or substantially all of the assets of the Company or of its Subsidiaries; (xix) settle or compromise any pending claim, judicial or administrative action, suit, proceeding or investigation for more than $10,000,000 in the aggregate; (xx) make any change in any material method of accounting or accounting practice or policy for tax or accounting purposes, other than those required by GAAP or under applicable Law; or (xxi) agree or commit to agree (in writing or otherwise) to do any of the foregoing. 5.3 Intercompany Agreements. Parent and the Company shall use their reasonable best efforts to (a) identify all of the services that have been historically provided by Parent to the Company or its Subsidiaries and all other relationships between the Company or its Subsidiaries and Parent that are necessary for the Company and its Subsidiaries to continue operating in a manner that is substantially equivalent to the manner in which they have operated during the twelve (12) months prior to this Agreement (the "Relationships"), (b) identify all of the other relationships and agreements between the Company or its Subsidiaries and Parent that are necessary for the separation of the Company and its Subsidiaries from the Parent (the "Separation Agreements"), (c) memorialize in various agreements (the "Intercompany Agreements") the terms and conditions of each of the Relationships and services to be continued after the Closing, and (d) enter into the Separation Agreements, in each case in accordance with the provisions of this Section 5.3. The Relationships to be covered by the Intercompany Agreements shall include, but shall not be limited to, corporate services provided by Parent and its Subsidiaries to the Company and its Subsidiaries (including, without limitation, payroll, employee benefits and human resources, insurance, expense reimbursement and legal) ("Corporate Services"), software licenses, information technology ("IT"), intellectual property cross licenses, joint ownership and development, agency, starter repository access, title plant maintenance and title plant access (collectively, "Title Plant"), lease for space at the Company's headquarters, and tax disaffiliation agreements (which tax disaffiliation agreements shall not alter or amend any indemnification obligations of Parent under Section 8.2(a)(iii)). The Intercompany Agreements shall be negotiated between the Company and Parent as promptly as practicable and prior to the Closing, and shall be in form and substance reasonably satisfactory to the Parent, the Company and the Purchasers Representatives. The Purchasers shall have the right to participate in the negotiations of such Intercompany Agreements and each party will negotiate in good faith to complete the Intercompany Agreements as contemplated by this Section 5.3. The Intercompany Agreements shall provide that the costs of the Corporate Services to and from the 34 Company shall be at each party's cost of providing such services; provided that, in the case of the Corporate Services provided to the Company, in no event shall the cost of such services per year exceed an amount equal to (A) $50,000,000 plus (b) commencing in 2006, an amount equal to (x) $50,000,000 times (y) a percentage equal to one-half of the percentage of any increase in the Company's and its Subsidiaries revenues over the prior fiscal year. The costs and fees of all other services and rights under the Intercompany Agreements shall be at the fair market value thereof that would be obtainable from an unaffiliated third party. The Parent will agree to provide the Corporate Services (and unless earlier terminated by the Purchasers) to the Company at all times prior to six months following the earlier to occur of (i) a Public Offering, and (ii) a Sale of the Company (as defined in the Stockholders' Agreement). It is anticipated that any one Corporate Service may be terminated without terminating any other Corporate Service under the relevant Agreement. The initial term of the agency agreement shall be 10 years. The initial term of the Title Plant agreement shall be 10 years. The initial term of the agreement pursuant to which the Company or one of its Subsidiaries will provide IT services to Parent and its other Subsidiaries will be 5 years, subject to a 2-year renewal at the option of Parent. The licensing to the Company and its Subsidiaries of rights to the name "Fidelity" shall be on a royalty-free basis, and for an initial 20-year term. Notwithstanding anything herein to the contrary, the parties will cooperate and use reasonable best efforts to agree upon terms designed to facilitate the Purchasers' objectives with respect to the extension or termination of any Intercompany Agreement or portions thereof upon a Sale of the Company or a Public Offering. 5.4 All Reasonable Efforts; Further Assurances. Subject to the terms and conditions hereof, each of the parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, as promptly as practicable, all things necessary, proper, or advisable under applicable Law to consummate and make effective as promptly as reasonably practicable the transactions contemplated hereby, including, but not limited to, obtaining all approvals, consents, waivers and authorizations set forth on Schedule 6.1(h), executing the agreements in the forms set forth as Exhibits hereto and consummating the Financing and the Parent Distribution. At and from time to time after the Closing, at the request of any party hereto, the other party shall execute and deliver such additional certificates, instruments, and other documents and take such other actions as such party may reasonably request in order to consummate the transactions contemplated by this Agreement. 5.5 Approvals. (a) Each party hereto shall proceed diligently and in good faith and shall use its reasonable best efforts to obtain, as promptly as practicable, (i) all authorizations, consents, orders and approvals of all Governmental Entities that may be or become necessary for such party's execution and delivery of, and the performance of its obligations pursuant to, this Agreement and the other Transaction Documents, including, without limitation, all authorizations or waivers required under the HSR Act and by the New York State Department of Insurance, and (ii) all approvals and consents required under all Contracts to which the Company or any of its Subsidiaries is a party to 35 consummate the transactions contemplated hereby. Each party will cooperate fully (including, without limitation, by providing all information the other party reasonably requests) with the other parties in promptly seeking to obtain all such authorizations, consents, orders and approvals. Notwithstanding anything to the contrary in this Section 5.5, the Parent and the Company shall not be required to agree to (i) the divestiture (including through a licensing arrangement) by the Parent or any of the Parent's Subsidiaries (including the Company and its Subsidiaries) of any of their respective businesses, product lines or assets, or (ii) the imposition of any limitation on the ability of any of them to conduct their business or to own or exercise control of such assets, properties and stock, each, a "Restraint". All filing fees required to be paid in connection with any filing under the HSR Act shall be expenses of the Purchasers. Notwithstanding anything herein to the contrary, in obtaining any consent required hereunder, the Purchasers shall not be required to consent to any restrictions on or any other Restraint on their businesses or those of their Affiliates nor to modify any term of (i) their investment in the Company or (ii) the Transaction Documents in any material respect. (b) Each party hereto shall promptly inform the other party of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement. If any party or Affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity in respect of the transactions contemplated hereby, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. 5.6 Public Announcements. The Company and Parent, on the one hand, and the Purchasers Representatives, on the other hand, will consult with each other and will mutually agree (the agreement of each party not to be unreasonably withheld) upon the content and timing of any press release or other public statement in respect of the transactions contemplated hereby and shall not issue any such press release or make any such public statement prior to such consultation and agreement, except as may be required by applicable Law or the rules or regulations of any exchange on which a party or its Affiliates' securities are listed or quoted; provided, however, that the Company and Parent, on the one hand, and the Purchasers, on the other hand, will give prior notice to the other party of the content and timing of any such press release or other public statement. 5.7 Notification. From the date hereof through the Closing Date, the Company and Parent will notify the Purchasers' Representatives of any change, circumstance, condition, development, effect, event, fact, or result in respect of the business, operations, financial condition, results of operations, assets or liabilities, of the Company or its Subsidiaries that, individually or in the aggregate, has resulted in or could reasonably be expected to result in a Material Adverse Effect. 5.8 Exclusivity. At all times prior to the termination of this Agreement in accordance with the terms hereof, the Company and Parent shall not, and shall cause their 36 officers, directors, employees, agents, advisors and other representatives not to, directly or indirectly: (a) solicit offers for, respond to any unsolicited offers for, enter into or conduct any negotiations with any other Person in respect of, or consummate or enter into any agreement, arrangement or understanding in respect of, a (i) sale of any securities of the Company or any material assets of the Company (other than sales of the Company's products and services in the ordinary course of business) or (ii) recapitalization, restructuring, merger, consolidation or other business combination involving the Company; or (b) disclose any non-public information relating to the business operations or affairs of the Company to any Person, afford any such other Person access to the books, records, information or assets of the Company, or otherwise assist or encourage any such other Person in connection with any proposed (i) acquisition of any securities or material assets of the Company (other than sales of the Company's products and services in the ordinary course of business) or (ii) recapitalization, restructuring, merger, consolidation or other business combination involving the Company. 5.9 Confidentiality. Each party hereto agrees that such party will hold, and will use all commercially reasonable efforts to cause its officers, directors, members, managers, partners, employees, accountants, counsel, consultants, advisors, financial sources, financial institutions, and agents (the "Representatives") to hold, in confidence in accordance with the Non-Disclosure Agreements all confidential information and documents received from the other party hereto and the parties hereby agree that the Non-Disclosure Agreements are not superseded and shall remain in effect pursuant to its terms. 5.10 Transfer Taxes. The Company shall pay all sales, use, transfer, stamp, conveyance, value added, or other equivalent taxes, duties, excises, or governmental charges imposed by any domestic or foreign taxing authority and all recording and filing fees, notorial fees, and other equivalent costs in connection with the issuance, sale or delivery of the Securities and shall indemnify and hold harmless Purchasers without limitation as to time against any and all liabilities in respect thereof. 5.11 Financial Statements. (a) Between the date hereof and the Closing Date, the Company shall deliver to the Purchasers, (i) as soon as reasonably practicable in accordance with normal practice after the end of each month, unaudited combined balance sheets of the Company and its Subsidiaries as of the end of such month (commencing with the delivery of such statements for the month of November, 2004) and combined statements of income for such month and for the period commencing at the end of the previous fiscal year and ending with the end of such month, setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year, all in reasonable detail (the "Monthly Financials"), and (ii) promptly after they are available, the audited combined balance sheet of the Company and its Subsidiaries at and for the fiscal year ending December 31, 2004 and the related 37 combined statements of income, cash flows and stockholders' equity for the period then ending, together with the report of KPMG LLP with respect thereto (the "2004 Statements"); (b) The 2004 Statements shall be prepared in accordance with GAAP, consistent with past practices and shall fairly present the combined financial condition, assets and liabilities, results of operations, cash flows, and changes in stockholders' equity of the Company and its Subsidiaries as of the dates, and for the periods, indicated therein; and (c) The Monthly Financials shall be prepared in accordance with GAAP, consistent with past practices. 5.12 Parent Board Approval. On or prior to January 7, 2005, the Parent shall hold a meeting of its Board of Directors for the purpose of approving the Transaction and the consummation of the transactions contemplated by this Agreement and the Company Documents. 5.13 Non-Competition Agreements. The Parent shall use reasonable best efforts to obtain, in connection with option grants to such persons, amendments to the existing non-competition agreements (or covenants, in those circumstance where the non-compete is contained in an employment agreement) of each of Hugh Harris, Ernie Smith, Michael Sanchez, Francis Sanchez, Gary Norcross and Roger Leitner to cover not only Fidelity Information Services, Inc., but also Fidelity National Information Services, Inc. and all of its Subsidiaries. ARTICLE VI Conditions Precedent to Closing 6.1 Conditions Precedent to the Company's Obligations. The obligation of the Company to consummate the issuance and sale of the Shares as contemplated hereby on the Closing Date is subject to the satisfaction or waiver by the Company of the following conditions: (a) Accuracy of Representations and Warranties. The representations and warranties of the Purchasers contained herein shall be true and correct as of the date hereof and as of the Closing, with the same effect as if made at and as of such time (except to the extent expressly made as of a date other than the date of this Agreement, in which case such representations and warranties shall be true and correct only as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any limitation as to "Purchaser Material Adverse Effect" qualifiers set forth therein) does not have, and would not reasonably be likely to have a Purchaser Material Adverse Effect. The representations and warranties contained in Section 4.6 shall be true and correct as of the date hereof and as of the Closing, with the same effect as if made at and as of such time. (b) Performance of Covenants. The Purchasers shall have performed and complied, in all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by them between the date hereof and the Closing Date. 38 (c) Closing Deliveries. The Purchasers shall have delivered to the Company each item set forth in Section 7.2 required to be delivered by the Purchasers on or before the Closing Date. (d) Approvals. No judgment, order, decree, statute, law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued by any court or other Governmental Entity of competent jurisdiction or other legal restraint or prohibition (collectively, "Restraints") shall be in effect, and there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity (i) preventing the consummation of the transactions contemplated by the Transaction Documents, (ii) prohibiting or limiting the ownership or operation by the Company or the Parent and their respective Subsidiaries of any portion of the business or assets of the Company or the Parent and their respective Subsidiaries taken as a whole, or compelling the Company or the Parent and their respective Subsidiaries to dispose of or hold separate any portion of the business or assets of the Company or the Parent and their respective Subsidiaries, taken as a whole, as a result of the transactions contemplated by the Transaction Documents or (iii) which otherwise would reasonably be likely to have a Material Adverse Effect. (e) Litigation. No action, suit, or proceeding shall have been initiated or threatened with the probable or reasonably likely effect of enjoining or preventing the consummation of the transactions contemplated hereby or seeking damages on account thereof. (f) HSR Act. All applicable waiting periods, if any, in respect of the transactions contemplated hereby under the HSR Act shall have expired or terminated. (g) Financing. The Company shall have received the funds contemplated by, and on terms no worse to the Company than those set forth in, the Financing Term Sheet and the Parent Distribution shall have been made. (h) Consents and Waivers. All approvals, authorizations, consents, and waivers of any Person or Governmental Entity set forth on Schedule 6.1(h) that are required in connection with the execution and delivery of any Transaction Document, the performance of the parties of their obligations hereunder or thereunder, and the consummation of the transactions contemplated hereby and thereby shall have been duly obtained and effective prior to or as of the Closing Date. (i) Minimum Purchase. The Company shall have received payment from the Purchasers of the aggregate Purchase Price. (j) Parent Board Approval. The Parent's Board of Directors shall have approved the Transaction and the consummation of the transactions contemplated by this Agreement and the Company Documents and such approval have been obtained by January 7, 2004 (the "Parent Board Approval"). 39 6.2 Conditions Precedent to Purchasers' Obligations. The obligation of each Sponsor Group to consummate the transactions contemplated hereby shall be contingent upon the other Sponsor Group simultaneously performing its obligations hereunder. Notwithstanding anything to the contrary contained herein, if a Sponsor Group does not perform its obligations under this Agreement (the "Defaulting Sponsor Group"), the non-Defaulting Sponsor Group shall have the right (but not the obligation) to (a) extend the Closing Date by 10 business days, and (b) assume the obligations of such Defaulting Sponsor Group for its own behalf, or the behalf of any of its Affiliates, provided that such Affiliates shall enter into this Agreement and the other Purchaser Documents to which the Defaulting Sponsor Group was or would have been a party. In addition, the obligation of each Purchaser to consummate the purchase of the Shares from the Company as contemplated hereby is subject to the satisfaction or waiver by such Purchaser on the Closing Date of the following conditions: (a) Accuracy of Representations and Warranties. The representations and warranties of Parent (i) contained in Article III, other than those referred to below in clause 6.2(a)(ii), shall be true and correct as of the date hereof and as of the Closing, with the same effect as if made at and as of such time (except to the extent expressly made as of a date other than the date of this Agreement, in which case such representations and warranties shall be true and correct only as of such date), except where the failure of such representations and warranties to be so true and correct (without giving effect to any "Material Adverse Effect" qualifiers set forth therein) does not have, and would not reasonably be likely to have a Material Adverse Effect, and (ii) contained in each of Section 3.1, 3.2, 3.3, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11 and 3.21 (the "No MAE Reps") shall be true and correct in all material respects (without giving effect to any limitation as to "Material Adverse Effect" qualifiers set forth therein) as of the date hereof and as of the Closing, with the same effect as if made at and as of such time (except to the extent expressly made as of a date other than the date of this Agreement, in which case such representations and warranties shall be true and correct only as of such date). (b) Performance of Covenants. The Company and Parent shall have performed and complied, in all material respects, with the covenants and provisions of this Agreement required to be performed or complied with by them between the date hereof and the Closing Date. (c) Approvals. No Restraints shall be in effect, and there shall not be pending or threatened any suit, action or proceeding by any Governmental Entity (i) preventing the consummation of the transactions contemplated by the Transaction Documents, (ii) prohibiting or limiting the ownership or operation by the Company and its Subsidiaries of any portion of the business or assets of the Company and its Subsidiaries or compelling the Company and its Subsidiaries to dispose of or hold separate any portion of the business or assets of the Company and its Subsidiaries as a result of the transactions contemplated by the Transaction Documents or (iii) which otherwise would reasonably be likely to have a Material Adverse Effect. 40 (d) Closing Deliveries. The Company and Parent shall have delivered to the Purchasers each item set forth in Section 7.1 required to be delivered by the Company or Parent on or before the Closing Date. (e) Litigation. No action, suit, or proceeding shall have been initiated or threatened with the probable or reasonably likely effect of enjoining or preventing the consummation of the transactions contemplated hereby or seeking damages on account thereof. (f) HSR Act. All applicable waiting periods, if any, in respect of the transactions contemplated hereby under the HSR Act shall have expired or terminated. (g) Consents and Waivers. All approvals, authorizations, consents, and waivers of any Person or Governmental Entity set forth on Schedule 6.1(h) that are required in connection with the execution and delivery of any Transaction Document, the performance of the Company of its obligations hereunder or thereunder, and the consummation of the transactions contemplated hereby and thereby shall have been duly obtained and effective prior to or as of the Closing Date. (h) Board of Directors. Each member of Thomas M. Hagerty, Seth Lawry, Jonathan Coslet and Marshall Haines shall have been duly nominated and elected to the Board of Directors of the Company ("Board of Directors"), and William P. Foley, II shall have been elected as Chairman of the Board of Directors. (i) D&O Insurance. Purchasers shall have received evidence reasonably satisfactory to them that the Company has in place a directors' and officers' liability insurance policy for directors of the Company, with coverage of at least $50.0 million and of a scope that is customary for companies equivalent to the Company in terms of size and industry. (j) Assignments. Parent shall have assigned to the Company, or one of its subsidiaries, as appropriate, the inventions referred to as "AQUA", "SCORE" and "ATOMS" and related patent applications with respect thereto and such assignments shall have been filed with the United States Patent and Trademark office ("USPTO"). Additionally, Parent shall have filed documentation with the USPTO indicating that the 24 registered trademarks and 3 trademark applications set forth on Annex 6.2(j) hereto (the "LSI Marks"), which are currently on file with the USPTO as owned by Lender's Service, Inc., are now owned by LSI Title Company, and setting forth accurate chain of title thereto. (k) Intentionally Left Blank. (l) Incentive Plan. The Company shall have adopted the 2005 Stock Incentive Plan, in substantially the form attached hereto as Exhibit C. Shares of the Company's Common Stock, representing 7.5% of the Company's outstanding Common Stock, on a 41 fully diluted basis immediately after the Closing, shall have been reserved for issuance under such Plan. (m) Financing; Repayment of Indebtedness. The Company shall have received the funds contemplated by, and on terms no worse to the Company than those set forth in, the Financing Term Sheet, and the Purchasers shall have received evidence satisfactory to them that all of the Company's Indebtedness (other than with respect to Capital Leases and the Financing) shall have been repaid and all liens securing such Indebtedness shall have been released. Except as imposed by the Financing, there shall be no Encumbrances (other than Permitted Encumbrances) on any of the assets of the Company or its Subsidiaries on the Closing Date. (n) Indemnification Agreements. The Company shall have entered into a separate Indemnification Agreements between the Company and each director designated by the Purchasers, each substantially in the form of Exhibit H attached hereto. (o) Cash Management Systems. The Company shall have established treasury and cash management systems and controls that are reasonably acceptable to Purchasers and separate and apart from those of Parent. (p) Minimum Cash. The Company and its Subsidiaries shall have cash and cash equivalents (excluding cash held at Kordoba) of at least $120,000,000 after giving effect to the payment by the Company of the intercompany payable of $106.7 million reflected on Schedule 3.11 hereto (provided the Financing has occurred and including at least $70.0 million of proceeds funded to the balance sheet from the proceeds of the Financing and this Transaction), as certified by a Certificate on behalf of the Company delivered by the Chief Financial Officer of Parent. Such minimum amount will be adjusted downward to reflect the use of cash to make acquisitions that have been approved in advance by the Purchasers. (q) EBITDA. Excluding any extraordinary items, including write-offs of intangibles, the Company's EBITDA for the year ended December 31, 2004 shall be at least $558.0 million, as certified by a Certificate on behalf of the Company delivered by the Chief Financial Officer of Parent. (r) Parent Board Approval. On or prior to January 7, 2005, the Parent Board Approval shall have been obtained. (s) Permits. On or before the Closing Date, Company shall have obtained state licenses (i) to conduct its title insurance business in Iowa, Oregon, Utah and Washington, and (ii) to conduct its escrow business in Alaska, Arizona, Hawaii, Idaho, Iowa, Oregon, South Dakota, Utah and Washington. 42 ARTICLE VII Closing Deliveries 7.1 Items to Be Delivered by the Company. At the Closing, each of the Parent and the Company shall deliver to the Purchasers: (a) Stock Certificates. One or more validly issued stock certificates to each Purchaser representing the Shares to be acquired by such Purchaser duly executed by the appropriate officers of the Company. (b) Certified Charter. A certified copy of the Certificate of Incorporation (or equivalent operational document) of the Company, certified by the Secretary of State of Delaware, as of a date no earlier than ten (10) days prior to the Closing. (c) Good Standing. A certificate of good standing of the Company issued by the Secretary of State of Delaware. (d) Officer's Certificate. A certificate, dated as of the Closing Date, duly executed on behalf of each of Parent and the Company by the President and the Secretary of each of Parent and the Company certifying that the conditions set forth in Sections 6.2(a) and (b), have been fully satisfied. (e) Independent Accountants' Review. The combined balance sheet of the Company and its Subsidiaries as of September 30, 2004 and the related statements of earnings, equity and comprehensive earnings and cash flows for the nine (9) month period then ended, including an Independent Accountants' Review Report issued by KPMG LLP in accordance with Statements on Standards for Accounting and Review Services issued by the American Institute of Certified Public Accountants shall have been delivered to Purchasers. (f) Transaction Documents. Executed versions of each of the other Transaction Documents to which it is a party. 7.2 Items to Be Delivered by Purchasers. At the Closing, Purchasers shall deliver to the Company: (a) Purchase Price. The Purchase Price in accordance with Section 2.2. (b) Transaction Documents. Executed versions of each of the other Transaction Documents to which it is a party. (c) Officer's Certificates. A certificate, dated as of the Closing Date, duly executed by the Purchasers certifying that the conditions set forth in Sections 6.1(a), and (b) have been fully satisfied. 43 ARTICLE VIII Survival and Indemnification 8.1 Survival of Representations, Warranties, and Covenants. (a) The representations and warranties of the Parent and the Purchasers contained in this Agreement and in any certificate delivered pursuant hereto shall survive until the date that is 45 days after receipt by the Purchasers of the consolidated audited financial statements of the Company and its Subsidiaries for the fiscal year ending December 31, 2005 (provided, however, that representations and warranties made in Sections 3.2, 3.5, 3.6, 3.7, 3.8, 3.21, the third sentence of 3.22(i), 4.2, 4.5 and 4.6 shall survive until sixty (60) days after any applicable statute of limitations or indefinitely if no such statute of limitations is applicable). Any claim for indemnification in respect of any representation or warranty that is not asserted by notice given as herein provided relating thereto prior to the expiration of the specified period of survival shall not be pursued and is hereby irrevocably waived after the expiration of such period of survival. Any claim for an Indemnifiable Loss in respect of such a breach asserted within such period of survival as herein provided will be timely made for purposes hereof. (b) Unless a specified period is set forth in this Agreement (in which event such specified period will control), the covenants in this Agreement will survive and remain in effect indefinitely. 8.2 Indemnification. (a) Parent shall indemnify, defend, and hold harmless the Purchasers, the Company and their Affiliates (provided however that the Parent shall not be obligated to indemnify, defend or hold harmless the Company and its Affiliates at any time after the Purchasers no longer hold any of the Shares (including any equity securities into which such shares may subsequently be converted or exchanged into)) from and against any and all Indemnifiable Losses to the extent relating to, resulting from, or arising out of: (i) any breach of representation or warranty of Parent under this Agreement or any certificate delivered in connection herewith; (ii) any breach or nonfulfillment of any agreement or covenant of the Company or Parent under this Agreement; (iii) any and all Taxes imposed on the Company or any of its Subsidiaries (A) for any taxable year or period (or portion thereof) that ends on or before the Closing Date (except, with respect to any particular Tax, to the extent the amount of such Tax has been (1) paid, (2) accrued on the consolidated balance sheet of the Company and its Subsidiaries dated November 30, 2004 previously delivered to Purchasers by Parent, (3) accrued in the financial statements delivered to Purchasers pursuant to Section 5.11 (the "Accruals") (provided that such Accruals are made consistent with past practice, in accordance with GAAP 44 and reflect only Taxes properly allocable to the Company and its Subsidiaries (as opposed to FNF and its Subsidiaries, other than the Company and its Subsidiaries) and including any amounts distributed under clause (i) of 5.2(b)(ix) (B) to the extent such distributions exceed the amounts accrued on the November 30, 2004 or the Accruals, or (4) with respect to the period commencing the last day of the month immediately preceding the Closing Date through the Closing Date, Taxes incurred in the ordinary course of business of the Company and its Subsidiaries), (B) under Treasury Regulation Section 1.1502-6(a) (or any similar provision of Law) by reason of being a member of any Affiliated Group on or before the Closing Date. Parent shall, unless prohibited by applicable Law, cause the Company and its Subsidiaries to close the taxable period of the Company and its Subsidiaries as of the close of business on the Closing Date. If applicable Law does not permit the Company or any of its Subsidiaries to close its taxable year on the Closing Date, the amount of such Taxes allocable to the portion of such period ending on the Closing Date shall (i) in the case of any Taxes based upon or related to income or gross receipts, be deemed equal to the amount which would be payable if the relevant taxable period ended on the Closing Date, and (ii) in the case of any Taxes other than Taxes based upon or related to income or gross receipts, be deemed to be the amount of such Taxes for the entire period multiplied by a fraction the numerator of which is the number of days in the portion of the period ending on the Closing Date and the denominator of which is the number of days in the entire period. Any allocation of income or deductions required to determine any Taxes relating to a such period shall be taken into account as though the relevant taxable period ended on the Closing Date and by means of a closing of the books and records of the Company or its Subsidiary, as applicable, as of the close of the Closing Date; provided that exemptions, allowances or deductions that are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated between the period ending on the Closing Date and the period after the Closing Date in proportion to the number of days in each such period. (iv) Title IV of ERISA solely as a result of the Company being or having been an ERISA Affiliate of Parent. The Purchasers shall determine, in their sole discretion, as to whether the Company, the Purchasers, or any other party entitled to indemnification pursuant to this Section 8.2(a) shall be the recipient of indemnification payments made hereunder. (b) Purchasers shall severally, but not jointly, indemnify, defend, and hold harmless the Company, the Parent and their Affiliates from and against any and all Indemnifiable Losses to the extent relating to, resulting from, or arising out of: (i) any breach of representation or warranty of such Purchaser under this Agreement; and 45 (ii) any breach or nonfulfillment of any agreement or covenant of such Purchaser under this Agreement. (c) For purposes of determining whether a breach of a representation and warranty has occurred and for purposes of determining the amount of any Indemnifiable Loss for all purposes under this Article VIII, each representation and warranty contained in this Agreement (other than the representation in Section 3.12(ii)) shall be read without regard to any materiality or Material Adverse Effect qualifier contained therein. 8.3 Deductible; Maximum Liability. Neither Parent nor the Purchasers shall be obligated to indemnify and hold harmless their respective Indemnitees under Section 8.2(a)(i) or Section 8.2(b)(i) unless and until the aggregate amount of all Indemnifiable Losses by the Indemnitees under such Section 8.2(a)(i) or Section 8.2(b)(i), as the case may be, exceeds $30.0 million for all Indemnifiable Losses (the "Deductible"), at which point Parent or the Purchasers, as the case may be, shall be liable to their respective Indemnitees for the value of the Indemnitee's claims under Section 8.2(a)(i) or Section 8.2(b)(i), as the case may be, that is in excess of the Deductible, subject to the limitations set forth in this Article VIII . The maximum aggregate liability of each of Parent and the Purchasers (considered together in the case of the Purchasers), as the case may be, to their respective Indemnitees for any and all Indemnifiable Losses pursuant to this Article VIII shall be $250.0 million (the "Cap"). Notwithstanding anything to the contrary contained herein, neither the Deductible nor the Cap shall apply with respect to Indemnifiable Losses to the extent relating to, resulting from, or arising out of (x) any breach or nonfulfillment of any agreement or any covenant contained in this Agreement, (y) any breach of representation or warranty contained in any of Sections 3.2, 3.5, 3.6, 3.7, 3.8, 3.21, the third sentence of 3.22(i), 4.2, 4.5 and 4.6, or any Indemnifiable Loss under Section 8.2(a)(iii); provided, however, that Parent shall not be obligated to indemnify and hold harmless any Indemnitee hereunder for a breach of Section 3.21 or for any Indemnifiable Loss relating to, resulting from, or arising out of clause (A) of Section 8.2(a)(iii), unless and until the aggregate amount of all such Indemnifiable Losses under such Section 3.21 and Section 8.2(a)(iii) exceeds $250,000 and then only to the extent of the Purchase Price, or (z) any Indemnifiable Losses relating to, resulting from or arising out of ERISA matters set forth in Section 8.1(a)(iv). 8.4 Definitions. As used in this Agreement: (i) "Indemnitee" means any person entitled to indemnification under this Agreement; (ii) "Indemnitor" means any person required to provide indemnification under this Agreement; (iii) "Indemnifiable Losses" means any and all damages, losses, liabilities, obligations, costs, and expenses, and any and all claims, demands, actions, suits, proceedings, or investigations or appeals by any Person, including the costs and expenses of any and all assessments, judgments, settlements, and compromises relating thereto but 46 not including attorneys' fees and expenses in respect thereof and in respect of establishing the right to indemnification hereunder; provided, however that any Indemnity Payment (x) made to the Purchasers shall be prorated to reflect only the Purchasers then percentage ownership interest in the Company, and, shall in no event include any special or punitive damages (unless in connection with a Third Party Claim), and (y) shall be net of any (A) amounts actually recovered (after deducting related costs and expenses) or recoverable by the Indemnitee for the Indemnifiable Losses for which such Indemnity Payment is made under any insurance policy, warranty or indemnity from any Person other than a party hereto, and (B) Tax benefits actually realized by the Indemnitee in respect of any Indemnifiable Losses for which such Indemnity Payment is made. (iv) "Indemnity Payment" means any amount of Indemnifiable Losses required to be paid pursuant to this Agreement; and (v) "Third-Party Claim" means any claim, action, suit, or proceeding made or brought by any person that is not a party to this Agreement or an Affiliate of a party to this Agreement. 8.5 Procedures for Third-Party Claims. (a) If any Indemnitee receives notice of assertion or commencement of any Third-Party Claim against such Indemnitee in respect of which an Indemnitor may be obligated to provide indemnification under this Agreement, the Indemnitee shall give such Indemnitor reasonably prompt written notice (but in no event later than 30 days after becoming aware) thereof; provided, however, that no delay on the part of the Indemnitee in notifying any Indemnitor shall relieve the Indemnitor from any obligation hereunder unless (and then solely to the extent) the Indemnitor is actually prejudiced by such delay. (b) Any Indemnitor will have the right to defend the Indemnitee against the Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnitee so long as (i) the Indemnitor notifies the Indemnitee in writing within thirty (30) days after the Indemnitee has given notice of the Third-Party Claim that the Indemnitor will indemnify the Indemnitee from and against any such Indemnifiable Losses, (ii) the Indemnitor provides the Indemnitee with evidence reasonably acceptable to the Indemnitee that the Indemnitor will have the financial resources to defend against the Third-Party Claim and, (iii) the Indemnitor conducts the defense of the Third-Party Claim actively and diligently; provided, that, in the event settlement of, or an adverse judgment in respect of, a Third-Party Claim, is likely, in the good faith judgment of a Purchaser who is an Indemnitee hereunder, to adversely affect the reputation or business of such Purchaser or its Affiliates, such Purchaser shall have the right to defend, at its expense, against such Third-Party Claim with the counsel of its choice. The Purchasers may also participate in defense of any other Third-Party Claim at their expense. (c) So long as the Indemnitor is conducting the defense of the Third-Party Claim in accordance with Section 8.4(b), (i) the Indemnitee may retain separate co- 47 counsel at its sole cost and expense and participate in the defense of the Third-Party Claim, (ii) the Indemnitee will not consent to the entry of any judgment or enter into any compromise or settlement in respect of the Third-Party Claim without the prior written consent of the Indemnitor (which consent will not be unreasonably conditioned, delayed, or withheld), and (iii) the Indemnitor will not consent to the entry of any judgment or enter into any compromise or settlement in respect of the Third-Party Claim without the prior written consent of the Indemnitee (which consent will not be unreasonably conditioned, delayed, or withheld); provided, however, that, in respect of clause (iii) above, the Indemnitee may condition such consent upon the delivery by the claimant or plaintiff to the Indemnitee of a duly executed unconditional release of the Indemnitee from all liability in respect of such Third-Party Claim. (d) In the event any condition set forth in Section 8.4(b) is or becomes unsatisfied, however, (i) the Indemnitee may defend against, and consent to the entry of any judgment or enter into any settlement in respect of, the Third-Party Claim in any manner it reasonably may deem appropriate, provided that the Indemnitee will consult with and obtain the consent of the Indemnitor in connection therewith which shall not be unreasonably conditioned, delayed, or withheld, (ii) the Indemnitor will reimburse the Indemnitee promptly and periodically for the costs of defending against the Third-Party Claim (including reasonable attorneys' fees and expenses), and (iii) the Indemnitor will remain responsible for any Indemnifiable Losses the Indemnitee may suffer resulting from, arising out of, relating to, in the nature of, or caused by, the Third-Party Claim to the fullest extent provided in this Section 8.4. 8.6 Direct Claims. The Indemnitor will have a period of thirty (30) days within which to respond in writing to any claim by an Indemnitee on account of an Indemnifiable Loss that does not result from a Third-Party Claim (a "Direct Claim"). If the Indemnitor does not so respond within such 30 day period, the Indemnitor will be deemed to have rejected such claim, in which event the Indemnitee will be entitled to pursue such remedies as may be available to the Indemnitee. In any case where the Purchasers are the Indemnitees, the Purchasers may bring the claim on behalf of the Purchasers or the Company, in their sole discretion. 8.7 Sole Remedy. The parties hereto acknowledge and agree that, if the Closing occurs, their sole and exclusive remedy following the Closing with respect to any and all claims arising out of or related to the transactions contemplated by this Agreement shall be pursuant to the provisions set forth in this Article VIII; provided, however that nothing contained herein shall prevent an Indemnitee from bringing a claim based on fraud. 8.8 Certain Other Matters. Upon making any Indemnity Payment, Indemnitor will, to the extent of such Indemnity Payment, be subrogated to all rights of Indemnitee against any third person (other than an insurance company) in respect of the Indemnifiable Loss to which the Indemnity Payment related; provided, however, that (i) Indemnitor shall then be in compliance with its obligations under this Agreement in respect of such Indemnifiable Loss and (ii) until Indemnitee fully recovers its 48 Indemnifiable payment, any and all claims of the Indemnitor against any such third person on account of such Indemnity Payment will be subrogated and subordinated in right of payment to Indemnitee's rights against such third person. Without limiting the generality or effect of any other provision hereof, each such Indemnitee and Indemnitor will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights. Any Indemnity Payment hereunder shall be treated as an adjustment to the applicable purchase price. ARTICLE IX Termination 9.1 Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the Closing: (a) by the written agreement of Purchasers, on the one hand, and the Company, on the other hand; (b) by Purchasers or the Company if there shall have been entered a final, non-appealable order or injunction by any Governmental Entity prohibiting or restraining the consummation of the transactions contemplated hereby or any material part hereof; (c) by the non-breaching party if another party shall have breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition to the terminating party's obligations as set forth in Article VI, and (B) such breach or failure to perform is incapable of being or has not been cured by the breaching party within 20 calendar days after giving written notice to the breaching party of such breach or failure to perform; provided, however that with respect to any breach of the No MAE Reps, the Parent shall have the right for 10 business days following the receipt of notice from the Purchasers Representatives of their intent to terminate this Agreement pursuant to this section, to attempt to cure such breach prior to the Purchasers being deemed to have any right to terminate this Agreement pursuant to this section; (d) by Parent and the Company if any Restraint having any of the effects set forth in Section 5.5 shall be in effect and shall have become final and nonappealable (provided that the right to terminate this Agreement under this Section 9.1(d) shall not be available to any party who has materially breached any representation, warranty or failed to fulfill any obligation under this Agreement) (e) by the Purchasers if the Parent Board Approval is not obtained by January 7, 2005; and 49 (f) by Purchasers or Parent on or after May 31, 2005, if the Closing has not occurred prior to such date; provided that the right to terminate this Agreement under this Section 9.1(f) shall not be available to any party who has materially breached any representation, warranty or failed to fulfill any obligation under this Agreement ;and provided further that if the only condition yet to be satisfied as of May 31, 2005 is the approval of the New York State Insurance Department, this date shall be automatically extended until July 31, 2005. The party desiring to terminate this Agreement pursuant to Section 9.1(b), 9.1(c), or 9.1(d) shall promptly give written notice of such termination to the other party. 9.2 Effect of Termination. Except for Section 5.6, 5.9 and this Section 9.2 and Article X which shall survive any termination of this Agreement, upon the termination of this Agreement pursuant to Section 9.1, this Agreement shall become null and void and of no further force and effect and all obligations of the parties hereto shall terminate and there shall be no liability or obligation of any party hereto; provided, however, that nothing herein shall relieve any party hereto from liability for its default under or breach of any representation, warranty, covenant, or agreement under this Agreement prior to such termination (other than a failure to obtain the Parent Board Approval; provided a Board meeting of Parent has been held in accordance with Section 5.12). ARTICLE X Miscellaneous 10.1 Amendments. This Agreement may be amended, modified, or supplemented only pursuant to a written instrument making specific reference to this Agreement and signed by each of the parties hereto. 10.2 Assignment. This Agreement and the rights and obligations hereunder shall not be assigned, delegated, or otherwise transferred (whether by operation of law (other than a merger), by contract, or otherwise) without the prior written consent of the Purchasers Representatives hereto; provided, however, that any Purchaser may, without obtaining the prior written consent of any other party, assign, delegate, or otherwise transfer its rights and obligations hereunder to any Affiliate of such Purchaser so long as such Affiliate joins as a Purchaser party hereto. Any attempted assignment, delegation, or transfer in violation of this Section 10.2 shall be void and of no force or effect. 10.3 Binding Effect. Except as otherwise expressly provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 10.4 Counterparts. This Agreement may be executed in multiple counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. 50 10.5 Entire Agreement. This Agreement (including the Schedules attached hereto) and the Transaction Documents constitute the entire agreement of the parties hereto in respect of the subject matter hereof and thereof, and supersede all prior agreements or understandings, among the parties hereto in respect of the subject matter hereof and thereof. Except for the representations and warranties expressly set forth in this Agreement, neither the Company, Parent, any Purchaser nor any other Person has made and does not hereby make any express or implied representations or warranties of any nature. 10.6 Fees and Expenses. (a) The Company shall pay, out of the proceeds of the Purchase Price, all actual, reasonable and out-of-pocket expenses incurred by or on behalf of the Purchasers (including, without limitation, legal, accounting and investment banking fees and expenses) in connection with the preparation, negotiation, execution, delivery, and performance of this Agreement and each Transaction Document, including legal and financial diligence relating thereto but in no event in an amount in excess of $45 million (inclusive of all amounts paid at Closing under Section 2(a) of the Management Agreement). (b) The Company shall pay, out of the proceeds of the Purchase Price and the Transaction, all actual, reasonable and out-of-pocket of the expenses incurred by or on behalf of the Company and the Parent (including, without limitation, legal, accounting and investment banking fees and expenses) in connection with the preparation, negotiation, execution, delivery, and performance of this Agreement and each Transaction Document and the consummation of the transactions contemplated hereby and thereby but in no event in an amount in excess of $10 million. The Company shall pay, out of the proceeds of the Financing, all actual, reasonable and out of pocket expenses incurred by or on behalf of the Parent or the Company (including, without limitation, legal, accounting and investment banking fees, commitment fees and other bank costs, fee and expenses) in connection with the preparation, negotiation, execution, delivery, and performance of this Agreement and each Transaction Document, including legal and financial diligence relating thereto but in no event in an amount in excess of $50 million. 10.7 Governing Law. This Agreement shall be enforced, governed, and construed in all respects in accordance with the laws of the State of New York applicable to contracts executed and performable solely in such state. 10.8 Headings. The article and section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof. 10.9 Jurisdiction. The parties hereto agree that any action, suit, or proceeding seeking to enforce any provision of, or based on any matter arising out of or relating to, this Agreement or the transactions contemplated hereby can only be brought in federal 51 court sitting in the Southern District of New York or, if such court does not have jurisdiction, any state court sitting in the Borough of Manhattan, New York County, New York, and each of the parties hereto hereby consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such action, suit, or proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such action, suit, or proceeding in any such court or that any such action, suit, or proceeding that is brought in any such court has been brought in an inconvenient forum. 10.10 Notices. Any notice, demand, request, instruction, correspondence, or other document required or permitted to be given hereunder by any party to the other shall be in writing and delivered (i) in person, (ii) by a nationally recognized overnight courier service requiring acknowledgment of receipt of delivery, (iii) by United States certified mail, postage prepaid and return receipt requested, or (iv) by facsimile, as follows: If to the Company, to: Fidelity National Information Services, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane Facsimile No.: (904)357-1026 If to Parent, to: Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane Facsimile No.: (904)357-1026 If to a Purchaser, to: the addresses set forth on Schedule A with a copy to (which shall not constitute notice): Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra Marilyn French Facsimile No.: 617.772.8333 52 and if to TPG Partners IV, L.P. or its affiliates, with a copy to (which shall not constitute notice): Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 Attention: David Leinwand Facsimile: (212) 225-3999 Notice shall be deemed given, received, and effective on: (i) if given by personal delivery or courier service, the date of actual receipt by the receiving party, or if delivery is refused on the date delivery was first attempted; (ii) if given by certified mail, the third day after being so mailed if posted with the United States Postal Service; and (iii) if given by facsimile, the date on which the facsimile is transmitted if confirmed by transmission report during the transmitter's normal business hours, or at the beginning of the next business day after transmission if confirmed at any time other than the transmitter's normal business hours. Any person entitled to notice may change any address or facsimile number to which notice is to be given to it by giving notice of such change of address or facsimile number as provided in this Section 10.11. The inability to deliver notice because of changed address or facsimile number of which no notice was given shall be deemed to be receipt of the notice as of the date such attempt was first made. 10.11 No Recourse. Notwithstanding any provision of this Agreement to the contrary, each party hereto agrees that absent fraud, willful misconduct or intentional misrepresentation, neither it nor any person acting on its behalf may assert any claim or cause of action against any officer, director, stockholder, controlling person, manager, member, partner, employer, agent, representative, or Affiliate of any other party nor their respective officers, directors, stockholders, controlling persons, managers, members, partners, employees, agents, or representatives in connection with, arising out of, or relating to this Agreement, the Transaction Documents, or the transactions contemplated hereby or thereby. 10.12 Severability. If any provision of this Agreement or the application of such provision to any person or circumstance shall be held (by a court of competent jurisdiction) to be invalid, illegal, or unenforceable under the applicable Law of any jurisdiction, (i) the remainder of this Agreement or the application of such provision to other persons or circumstances or in other jurisdictions shall not be affected thereby, and (ii) such invalid, illegal, or unenforceable provision shall not affect the validity or enforceability of any other provision of this Agreement. 10.13 Specific Performance. The Parties hereby acknowledge and agree that if any party fails to perform under this Agreement, monetary damages alone may not be adequate to compensate the other parties for their injuries. Each party shall, therefore, in addition to any other remedy that may be available to them, be entitled to seek to obtain specific performance of this Agreement. If any action, suit, or proceeding is instituted by a party to enforce this Agreement, the other parties hereby waive the defense that there is 53 an adequate remedy at law. In the event of a Default by a party that results in the filing of an action for damages, specific performance, or other remedies, the winning party shall be entitled to reimbursement by the defaulting party of all reasonable attorneys' fees and expenses incurred by it. 10.14 Third-Party Beneficiaries. Except as expressly provided in Article VIII, nothing express or implied in this Agreement is intended or shall be construed to confer upon or give any Person other than the parties hereto and their respective permitted assigns any rights or remedies under of by reason of this Agreement or the transactions contemplated hereby. 10.15 Waiver. Except as otherwise expressly provided herein, the rights and remedies provided for herein are cumulative and not exclusive of any right or remedy that may be available to any party whether at law, in equity, or otherwise. No delay, forbearance, or neglect by any party, whether in one or more instances, in the exercise or any right, power, privilege, or remedy hereunder or in the enforcement of any term or condition of this Agreement shall constitute or be construed as a waiver thereof. No waiver of any provision hereof, or consent required hereunder, or any consent or departure from this Agreement, shall be valid or binding unless expressly and affirmatively made in writing and duly executed by the party to be charged with such waiver. No waiver shall constitute or be construed as a continuing waiver or a waiver in respect of any subsequent breach or Default, either of equivalent or different nature, unless expressly so stated in such writing. 10.16 Purchaser Obligations. All obligations of the Purchasers contained herein shall be several, not joint. [Remainder of Page Intentionally Left Blank] 54 IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase Agreement as of the date first above written. FIDELITY NATIONAL INFORMATION SERVICES, INC. By:__________________________________________ Name:________________________________________ Title:_______________________________________ FIDELITY NATIONAL FINANCIAL, INC. By:__________________________________________ Name:________________________________________ Title:_______________________________________ THOMAS H. LEE EQUITY FUND V, L.P. By: THL Equity Advisors V, LLC, its general partners By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By:__________________________________________ Name: Title: Managing Director 55 THOMAS H. LEE PARALLEL FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By:__________________________________________ Name: Title: Managing Director THOMAS H. LEE CAYMAN FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By:__________________________________________ Name: Title: Managing Director THOMAS H. LEE INVESTORS LIMITED PARTNERSHIP By: THL Investment Management Corp., its general partner By:__________________________________________ Name: Title: 56 PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY I LLC By: Putnam Investments Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By:__________________________________________ Name: Title: PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY II LLC By: Putnam Investments Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By:__________________________________________ Name: Title: 57 PUTNAM INVESTMENTS HOLDINGS, LLC By: Putnam Investments, LLC, its managing member By:__________________________________________ Name: Title: TPG PARTNERS IV, L.P. By: TPG GenPar IV, L.P., its general partner By: TPG Advisors IV, Inc., its general partner By:__________________________________________ Name: Title: TPG PARTNERS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By:__________________________________________ Name: Title: TPG PARALLEL III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By:__________________________________________ Name: Title: 58 TPG INVESTORS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By:__________________________________________ Name: Title: FOF PARTNERS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By:__________________________________________ Name: Title: FOF PARTNERS III-B, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By:__________________________________________ Name: Title: TPG DUTCH PARALLEL III, C.V. By: TPG GenPar Dutch, L.L.C., its general partner By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By:__________________________________________ Name: Title: 59 SCHEDULE A ALLOCATION AMONG THE PURCHASERS OF 50,000,000 SHARES OF COMMON STOCK OF THE COMPANY THL ENTITIES
ENTITY NUMBER OF SHARES PERCENTAGE ------ ---------------- ---------- Thomas H. Lee Equity Fund V, L.P. 19,256,200.0000 77.0248% Thomas H. Lee Parallel Fund V, L.P. 4,996,225.0000 19.9849% Thomas H. Lee Equity (Cayman) Fund V, L.P. 265,325.0000 1.0613% Putnam Investments Holdings, LLC 150,525.0000 0.6021% Putnam Investments Employees' Securities 129,375.0000 0.5175% Company I LLC Putnam Investments Employees' Securities 115,525.0000 0.4621% Company II LLC Thomas H. Lee Investors Limited Partnership 86,825.0000 0.3473% THL ENTITIES IN TOTAL(1) 25,000,000.0000 100.0000%
TPG ENTITIES
ENTITY NUMBER OF SHARES PERCENTAGE ------ ---------------- ---------- TPG Partners IV, L.P. 15,435,900.0000 61.7436% TPG Partners III, L.P. 7,593,200.0000 30.3728% TPG Parallel III, L.P. 991,700.0000 3.9668% TPG Investors III, L.P. 500,175.0000 2.0007% FOF Partners III, L.P. 12,025.0000 0.0481% FOF Partners III-B, L.P. 267,400.0000 1.0696% TPG Dutch Parallel III, C.V 199,600.0000 0.7984% TPG ENTITIES IN TOTAL 25,000,000.0000 100.0000%
TOTAL
ENTITY NUMBER OF SHARES PERCENTAGE ------ ---------------- ---------- THL Entities 25,000,000.0000 50.0000% TPG Entities 25,000,000.0000 50.0000% TOTAL 50,000,000.0000 100.0000%
- --------------- (1) The 25,000,000 shares purchased by the THL entities in the aggregate may be reallocated among the THL entities prior to Closing. EX-99.1 3 a04306exv99w1.txt EXHIBIT 99.1 EXHIBIT 99.1 EXECUTION COPY STOCKHOLDERS AGREEMENT DATED _____________, 2005 AMONG FIDELITY NATIONAL INFORMATION SERVICES, INC. AND THE OTHER PARTIES HERETO TABLE OF CONTENTS
PAGE ---- ARTICLE I REPRESENTATIONS AND WARRANTIES OF THE PARTIES............................................ 1 1.1 Representations and Warranties of the Company and Parent.................................... 1 1.2 Representations and Warranties of the Stockholders.......................................... 2 ARTICLE II VOTING AGREEMENTS AND COVENANTS.......................................................... 2 2.1 Election of Directors; Committees........................................................... 2 2.2 Voting Required for Action.................................................................. 4 2.3 Selection Criteria.......................................................................... 6 2.4 Sponsor Veto................................................................................ 6 2.5 Independent Company Management Terms........................................................ 6 2.6 Parent Board Representation................................................................. 7 ARTICLE III TRANSFERS OF SHARES...................................................................... 7 3.1 Restrictions on Transfer of Shares.......................................................... 7 3.2 Tag-Along Rights............................................................................ 7 3.3 Excluded Shares............................................................................. 9 3.4 Transfers in Violation of Agreement......................................................... 9 ARTICLE IV RIGHT OF FIRST OFFER; RIGHTS TO COMPEL SALE.............................................. 9 4.1 Right of First Offer........................................................................ 9 4.2 Exchange Rights............................................................................. 11 ARTICLE V REDEMPTION RIGHTS........................................................................ 12 5.1 Redemption of Sponsor Shares................................................................ 12 5.2 Redemption Closing.......................................................................... 13 5.3 Failure to Redeem........................................................................... 13 ARTICLE VI PRE-EMPTIVE RIGHTS....................................................................... 13 6.1 Issuance of New Shares...................................................................... 13 ARTICLE VII BOARD OBSERVERS AND ACCESS............................................................... 14 7.1 Board Representation and Access............................................................. 14 7.2 Information Rights.......................................................................... 16 ARTICLE VIII AMENDMENT AND TERMINATION................................................................ 16 8.1 Amendment and Waiver........................................................................ 17
8.2 Termination of Agreement.................................................................... 17 8.3 Termination as to a Party................................................................... 17 ARTICLE IX MISCELLANEOUS............................................................................ 17 9.1 Certain Defined Terms....................................................................... 17 9.2 Legends..................................................................................... 21 9.3 Severability................................................................................ 22 9.4 Entire Agreement............................................................................ 22 9.5 Successors and Assigns...................................................................... 22 9.6 Counterparts................................................................................ 22 9.7 Remedies.................................................................................... 22 9.8 Notices..................................................................................... 23 9.9 Governing Law............................................................................... 24 9.10 Descriptive Headings........................................................................ 24 9.11 Tax-Free Reorganization..................................................................... 24
-ii- STOCKHOLDERS AGREEMENT THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is entered into as of _______________, 2005 by and among (i) Fidelity National Information Services, Inc., a Delaware corporation (the "Company"), (ii) Thomas H. Lee Equity Fund V, L.P., Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., Thomas H. Lee Investors Limited Partnership, Putnam Investments Holdings, LLC, Putnam Investments Employees' Securities Company I, LLC, and Putnam Investments Employees' Securities Company II, LLC (each a "THL Holder," collectively, "THL"), (iii) TPG Partners III, L.P., TPG Parallel III, L.P., TPG Investors III, L.P., FOF Partners III, L.P., FOF Partners III-B, L.P., TPG Dutch Parallel III, C.V. and TPG Partners IV, L.P. (each a "TPG Holder," collectively "TPG"), and (iii) Fidelity National Financial, Inc. (the "Parent"). Each THL Holder and TPG Holder is referred to herein as a "Sponsor," and collectively, the "Sponsors." The Sponsors, the Parent, and each other Person that is or may become a party to this Agreement as contemplated hereby are sometimes referred to herein collectively as the "Stockholders" and individually as a "Stockholder." Certain capitalized terms used herein are defined in Section 9.1. The parties hereto agree as follows: ARTICLE I REPRESENTATIONS AND WARRANTIES OF THE PARTIES 1.1 Representations and Warranties of the Company and Parent. Each of the Company and Parent hereby represent and warrant to each Stockholder (other than Parent) that as of the date of this Agreement: (a) it is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, it has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action; (b) this Agreement has been duly and validly executed and delivered by it and constitutes a legal and binding obligation of the Company or Parent, as the case may be, enforceable against it in accordance with its terms; and (c) the execution, delivery and performance by the Company and Parent of this Agreement and the consummation by the Company and Parent of the transactions contemplated hereby will not, with or without the giving of notice or lapse of time, or both, (i) violate any provision of law, statute, rule or regulation to which the Company or Parent is subject, (ii) violate any order, judgment or decree applicable to the Company or Parent or (iii) conflict with, or result in a breach or default under, any term or condition of the Company's or Parent's organizational documents or any agreement or instrument to which the Company or Parent is a party or by which it is bound. 1.2 Representations and Warranties of the Stockholders. Each Stockholder other than Parent (as to himself or itself only) represents and warrants to the Company and Parent that, as of the time such Stockholder becomes a party to this Agreement: (a) it is a corporation duly organized, validly existing and in good standing under the laws of the State of its state of incorporation, or it is a limited partnership or a limited liability company duly formed, validly existing, and in good standing under the Laws of the State of its state of formation, as the case may be, it has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, and the execution, delivery and performance by it of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate, partnership or limited liability company action. (b) this Agreement (or the separate joinder agreement executed by such Stockholder) has been duly and validly executed and delivered by such Stockholder, and this Agreement constitutes a legal and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms; and (c) the execution, delivery and performance by such Stockholder of this Agreement (or any joinder to this Agreement, if applicable) and the consummation by such Stockholder of the transactions contemplated hereby (and thereby, if applicable) will not, with or without the giving of notice or lapse of time, or both, (i) violate any provision of law, statute, rule or regulation to which such Stockholder is subject, (ii) violate any order, judgment or decree applicable to such Stockholder or (iii) conflict with, or result in a breach or default under, any term or condition of any agreement or other instrument to which such Stockholder is a party or by which such Stockholder is bound. ARTICLE II VOTING AGREEMENTS AND COVENANTS 2.1 Election of Directors; Committees. (a) Each Person, other than the Company, that is a party to this Agreement hereby agrees that such Person will vote, or cause to be voted, all voting Shares of the Company over which such Person has the power to vote or direct the voting, and will take all other necessary or desirable actions within such Person's control, and the Company will take all necessary or desirable actions within its control, to cause the authorized number of directors to be established at up to sixteen (16) directors, and to elect or appoint or cause to be elected or appointed to the board of directors of the Company (the "Board") and cause to be continued in office, the following individuals, in each case subject to the provisions of subparagraph (b) below: (i) one (1) director designated by Thomas H. Lee Equity Fund V, L.P. and one (1) director designated by Thomas H. Lee Parallel Fund V, L.P. (collectively, the "THL Directors"), who shall initially be Thomas M. Hagerty and Seth Lawry and who shall be such directors so long as they -2- are principals of THL (or equivalent or higher ranking employees of THL), provided that any directors replacing the initial THL Directors shall always be individuals who are principals of THL (or equivalent or higher ranking employees of THL); (ii) two (2) directors designated by TPG Partners IV, L.P. (the "TPG Directors"), who shall initially be Jonathan Coslet and Marshall Haines and who shall be such directors so long as they are principals of TPG (or equivalent or higher ranking employees of TPG), provided that any directors replacing the initial TPG Directors shall always be individuals who are principals of TPG (or equivalent or higher ranking employees of TPG) ; and (iii) up to twelve (12) directors designated by Parent representing the proportional amount of Shares held by Parent at the relevant time (the "Parent Directors"); provided that, it is acknowledged that any number of the director seats to be filled by the Parent at any time may remain vacant until such time as the Parent elects to fill such seats. (b) If at any time THL or TPG ceases to own at least 50% of the Shares held by it as of the date hereof (subject to adjustment for stock splits, combinations and similar events), the number of directors THL or TPG, as the case may be, is entitled to designate shall be decreased by one. In the event such decrease results in an undesignated Board seat, the remaining Board members may designate, by majority vote, a successor director to fill the vacancy created thereby or decrease the size of the Board by such seats. (c) The chairman of the Board (the "Chairman") shall be elected by a majority vote of the Board; provided, however, that William P. Foley, II shall serve as the Chairman for an initial period of three (3) years provided he continues to be employed by the Company as Chief Executive Officer. (d) The Board shall hold no less than one (1) meeting per fiscal quarter. At each meeting of the Board (or committee thereof) at which a quorum is present, each director shall be entitled to one vote on each matter to be voted on at such meeting. A majority of the Board shall constitute a quorum. (e) If at any time any director ceases to serve on the Board (whether due to resignation, removal or otherwise), the Stockholders shall elect a successor to fill the vacancy created thereby on the terms and subject to the conditions of paragraphs (a) and (b) above. Each Person that is a party hereto agrees to vote, or cause to be voted, all voting Shares of the Company over which such Person has the power to vote or direct the voting, and shall take all such other actions as shall be necessary or desirable to cause the designated successor to be elected to fill such vacancy. (f) Nothing in this Agreement shall be construed to impair any rights that the stockholders of the Company may have to remove any director for cause under applicable law, -3- the certificate of incorporation of the Company, or the by-laws of the Company, as the case may be. No such removal of an individual designated pursuant to this Section 2.1 for cause shall affect any of the Stockholders' rights to designate a different individual pursuant to this Section 2.1 to fill the position from which such individual was removed. (g) Each member of the Board shall be entitled to reimbursement from the Company for his or her reasonable out-of-pocket expenses (including travel) incurred in attending any Board meeting. (h) For so long as a Sponsor has any designees on the Board, the Company shall obtain and maintain directors and officers liability insurance with coverage of at least $50,000,000 and of a scope that is customary for companies equivalent to the Company in terms of size and industry. The Company shall indemnify the directors designated by the Sponsors in accordance with the Company's certificate of incorporation and each indemnification agreement entered into by the Company and such director. (i) There shall be established at all times during the term of this Agreement a Compensation Committee of the Board (the "Compensation Committee") which shall be comprised of up to five (5) directors as follows: one (1) of whom shall be one of the THL Directors, one (1) of whom shall be one of the TPG Directors and three (3) of whom shall be Parent Directors, provided that, one (1) of the Parent Directors shall be an independent director selected by Parent who shall not be an employee of Parent. The Compensation Committee will (i) determine the compensation of all senior employees and consultants of the Company (including salary, bonus, equity participation and benefits) consistent with compensation of companies similar to the Company and (ii) approve the grants of any options under, or amendments to or replacement of, the Company's 2005 Equity Incentive Plan; provided that no member of the Compensation Committee may vote on his own compensation or option grant. The initial members of the Compensation Committee shall be William P. Foley, II, Thomas M. Hagerty and Jonathan Coslet and two other individuals designated by Parent in accordance with the provisions in this clause (i). (j) There shall be established at all times during the term of this Agreement an Audit Committee of the Board (the "Audit Committee") which shall be comprised of THL Directors, TPG Directors and Parent Directors representing the proportional amount of Shares held by THL, TPG and Parent, respectively. The Audit Committee shall determine the Company's audit policies, review audit reports and recommendations made by the Company's internal audit staff and its independent auditors, meet with the Company's independent auditors, oversee the independent auditors, and recommend the Company's engagement of independent auditors. (k) All other committees that may be established by the Board from time to time shall be comprised of up to five (5) directors as follows: one (1) of whom shall be one of the THL Directors, one (1) of whom shall be one of the TPG Directors and three (3) of whom shall be Parent Directors, provided that, one (1) of the Parent Directors shall be an independent director selected by Parent who shall not be an employee of Parent. -4- 2.2 Voting Required for Action. (a) At any time prior to a Public Offering, the following actions by the Company or any of its Subsidiaries shall require the approval of (X) the holders of at least a majority of the Shares then held by THL and its Transferees, and (Y) the holders of at least a majority of the Shares then held by TPG and its Transferees: (i) the approval of any modification or deviation in excess of (A) 20% with respect to the capital expenditure line item of the annual operating budget and capital expenditure budget of the Company and its Subsidiaries from the amounts included in the three (3) year projections attached hereto as Schedule 1 (unless such increase relates to an acquisition permitted or approved under Section 2.2(a)(ii)), and (B) 20% of the aggregate amounts set forth in the annual operating budget and capital expenditure budget approved by the Board on an annual basis, (ii) acquisition, by merger or consolidation, or by purchase of, or investments in, all or substantially all of the assets or stock of, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, in excess of $50,000,000 per transaction or series of related transactions, or in excess of $100,000,000 in the aggregate in any fiscal year, (iii) amendments to the certificate of incorporation or bylaws of the Company or any of its Subsidiaries in a manner which disproportionately and adversely affects the rights of the Sponsors or which adversely affect the indemnification or exculpation of any director of the Company, (iv) subject to the rights of the Sponsors in Section 4.1, any (A) sale of all or substantially all of the assets of, or liquidation, dissolution or recapitalization of, the Company or any of its Material Subsidiaries, or (B) change of control of the Company or a Material Subsidiary, whether through merger or sale of stock or otherwise, the result of which is Persons owning voting stock of the Company or such Material Subsidiary, as the case may be, prior to such transaction do not hold more than 50% of the voting stock of the Company after giving effect to such transaction, (v) the incurrence of any indebtedness for borrowed money by the Company or any of its Subsidiaries in excess of $100,000,000 in the aggregate or the granting of any lien or encumbrance on the assets or pledge of the capital stock of the Company or its Subsidiaries (other than those imposed in connection with the Financing), (vi) the authorization or issuance, or committing to authorize or issue, any equity securities of the Company or its Subsidiaries senior to the Shares -5- (or any replacement securities) held by the Sponsors as to liquidation preference, redemption rights or dividend rights, (vii) any increase in the authorized number of shares of Common Stock or Common Stock Equivalents issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company, pursuant to the 2005 Equity Incentive Plan or adoption of any similar incentive or option plan, (viii) entering into any contract or transaction (other than an Exempted Arrangement) which involves payments by any party of more than $500,000 annually in the aggregate, between the Company and any of its Subsidiaries on the one hand and any Stockholder or its Affiliates or any Related Parties on the other, (ix) any Public Offering that is not a Qualified Public Offering, or (x) any (A) commencement of a case, proceeding or other action (1) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (2) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or (B) making of a general assignment for the benefit of its creditors. 2.3 Selection Criteria. In the event that the Board determines to appoint a new Chief Executive Officer, Chief Financial Officer or Chief Operating Officer (or equivalent position) at any time or times, the Company shall select persons for such positions who meet criteria agreed to in advance by the Board in consultation with the Sponsors. 2.4 Sponsor Veto. (a) Each time the Board proposes to replace the Chief Executive Officer, Chief Financial Officer or Chief Operating Officer, the Sponsor Group, for bona fide, good faith reasons, communicated in writing in reasonable detail by the Sponsor Group within a reasonable time after the Company notifies the Sponsors of the identity of a proposed replacement candidate, shall have the right to veto the selection of two such proposed candidates for Chief Executive Officer, two such proposed candidates for Chief Financial Officer and two such proposed candidates for Chief Operating Officer of the Company (each such candidate, a "Candidate"). (b) In the event the Sponsor Group has already vetoed two Candidates for any of such positions, the Sponsor Group will have the right to veto a third Candidate for such position so long as the Sponsor Group withdraws its veto and waives its veto rights with respect -6- to one of the previously vetoed Candidates, and the Company will have the right to appoint to such position the Candidate for whom the veto was withdrawn. (c) Notwithstanding anything in this Section 2.4 to the contrary: (i) a simple majority of the Board may appoint an interim Chief Executive Officer, Chief Financial Officer or Chief Operating Officer to serve for a term not to exceed (unless otherwise agreed in writing by THL & TPG) 120 calendar days (the "Interim Term"); and (ii) a simple majority of the Board may extend the Interim Term by successive increments of 60 calendar days until a Chief Executive Officer, Chief Financial Officer or Chief Operating Officer is appointed, so long as the Company is proceeding in good faith with the process set forth in this Section 2.4. 2.5 Independent Company Management Terms. The Company will use reasonable best efforts to put in place within a reasonable time after the date hereof a senior management team at the Company (including a chief legal officer and chief operating officer) composed of managers who are not employed by, or serve as directors of, Parent (other than William P. Foley, II and Brent Bickett who will be employed by both Parent and the Company). 2.6 Parent Board Representation. Parent will use reasonable best efforts to have Thomas M. Hagerty nominated and elected to Parent's Board of Directors. ARTICLE III TRANSFERS OF SHARES 3.1 Restrictions on Transfer of Shares. (a) Prior to the completion of the Company's first Public Offering, no Stockholder may Transfer any Shares, except in an Exempt Transfer or otherwise in accordance with the applicable terms of this Agreement. (b) No Transfer of any Shares by any Stockholder shall become effective unless and until the Transferee (unless such Transferee already is party to this Agreement) executes and delivers to the Company a counterpart to this Agreement, agreeing to be treated in the same manner as the transferring Stockholder. Upon such Transfer and such execution and delivery, the Transferee acquiring Transferred Shares shall be bound by, and entitled to the benefits of, this Agreement in the same manner as the transferring Stockholder; provided that no Transferee of a Sponsor (other than pursuant to the second sentence of the definition of an Exempt Transfer) shall be entitled to any of the rights of the Sponsor set forth in this Agreement (or the benefits hereunder) other than Section 3.2, Article V, Article VI, Section 7.2, Article VIII and Article IX hereof. Any attempted Transfer of Shares by any Stockholder not in accordance with this Section 3.1 shall not be effective and shall be void. -7- (c) No Shares may be transferred by a Stockholder (other than pursuant to an effective registration statement under the Securities Act) unless such Stockholder first delivers to the Company an opinion of counsel, which opinion and counsel shall be reasonably satisfactory to the Company, to the effect that such Transfer is not required to be registered under the Securities Act. 3.2 Tag-Along Rights. (a) At any time after the date of this Agreement, if any Sponsor or Parent (the "Selling Holder") proposes to Transfer any such Shares to a third party, the Selling Holder shall, before such Transfer: (i) Deliver to the Company and to the other Stockholders (the "Other Holders") at least thirty (30) days prior written notice of such proposed Transfer (the "Sale Notice") and the terms of such Transfer, including (A) the number of shares of Common Stock to which the Transfer relates (the "Offered Shares"), (B) the name and address of the proposed Transferee, (C) the proposed amount and type of consideration (including, if the consideration consists in whole or in part of non-cash consideration, such information available to the Selling Holder as may be reasonably necessary for the other Stockholders to properly analyze the economic value and investment risk of such non-cash consideration) and the terms and conditions of payment proposed by the Selling Holder. (ii) Any of the Other Holders may, within twenty-five (25) days of the receipt of the Sale Notice, give written notice (each, a "Tag-Along Notice") to the Selling Holder that such Other Holder wishes to participate in such proposed Transfer upon the terms and conditions set forth in the Sale Notice, which Tag-Along Notice shall specify the Shares such Other Holder desires to include in such proposed Transfer; provided, however, that (1) each Other Holder shall be required, as a condition to being permitted to sell Shares pursuant to this Section 3.2(a) in connection with a Transfer of Offered Shares, to sell a number of shares equal to the product of its Pro Rata Amount and the number of Offered Shares, (2) to exercise its tag-along rights hereunder, each Other Holder must agree to make to the Transferee on behalf of itself the same representations, warranties, covenants, indemnities and agreements as the Selling Holder agrees to make in connection with the Transfer of the Offered Shares (except that in the case of representations and warranties pertaining specifically to, or covenants made specifically by, the Selling Holder, the Other Holders shall make comparable representations and warranties pertaining specifically to (and, as applicable, covenants by) themselves), and must agree to bear its ratable share (which shall be proportionate based on the value of Shares that are Transferred) of all liabilities to the Transferees arising out of representations, warranties (other than those representations, warranties and covenants that pertain specifically to a -8- given Stockholder), covenants, indemnities or other agreements made in connection with the Transfer. Each Stockholder will bear (x) its own costs of any sale of Shares pursuant to this Section 3.2(a) and (y) its pro-rata share (based upon the relative amount of Shares sold) of any of the other costs of any reasonable and customary sale of Shares pursuant to this Section 3.2(a) to the extent such costs are incurred for the benefit of all Stockholders and are not otherwise paid by the Transferee. (b) If none of the Other Holders gives the Selling Holder a Tag-Along Notice prior to the expiration of the 25-day period for giving Tag-Along Notices with respect to the Transfer proposed in the Sale Notice, then (notwithstanding the first sentence of this Section 3.2(a)) the Selling Holder may Transfer such Offered Shares on the terms and conditions set forth, and to or among any of the Transferees identified (or Affiliates of Transferees identified), in the Sale Notice at any time within ninety (90) days after expiration of the 25-day period for giving Tag-Along Notices with respect to such Transfer. Any such Offered Shares not Transferred by the Selling Holder during such 90-day period will again be subject to the provisions of this Section 3.2(a) upon subsequent Transfer. If one or more Other Holders give the Selling Holder a timely Tag-Along Notice, then the Selling Holder shall use all reasonable efforts to obtain the agreement of the prospective Transferee(s) to the participation of the Other Holders in any contemplated Transfer, on the same terms and conditions as are applicable to the Offered Shares, and no Selling Holder shall transfer any of its shares to any prospective Transferee if such prospective Transferee(s) declines to allow the participation of the Other Holders. (c) The rights and restrictions contained in Section 3.2(a) shall not apply with respect to any Exempt Transfer. 3.3 Transfers in Violation of Agreement. Any Transfer or attempted Transfer of any Shares in violation of any provision of this Agreement shall be void, and the Company shall not record such Transfer on its books or treat any purported transferee of such Shares as the owner of such Shares for any purpose. ARTICLE IV LIQUIDTY RIGHTS 4.1 Duty to Negotiate; Appraisal. (a) If the Sponsors shall have cooperated with the Company in its efforts to consummate a Qualified Public Offering but the Company has not consummated a Qualified Public Offering prior to the second anniversary of the Closing Date, then, at any time thereafter, Sponsors holding at least 75% of the Sponsor Shares (the "Sponsor Group") may give notice (the "Transfer Notice") to Parent that the Sponsor Group desires to sell their Shares to Parent. For a period of 30 days from the date of the Transfer Notice, each party will negotiate in good faith regarding a sale of all the Sponsor Shares to the Parent or the Company. If the parties are unable to agree upon the terms of a sale of the Sponsor Shares to the Parent or the Company within such -9- 30-day period, then the Sponsors may elect to initiate the Appraisal Process to determine the Appraisal Price (the "Election"). Any Appraisal Process shall be initiated by the Sponsor Group by delivering to Parent and the Company the report of the first appraiser. (b) If, following the first Appraisal Process, the Sponsor Group is not satisfied in its sole discretion, with the Appraisal Price (which determination it shall make within fifteen (15) days of completion of the Appraisal Process), then it may elect (the "Second Election") to initiate the Appraisal Process a second time; provided that the Sponsor Group may not make a Second Election within 12 months of the Election. If, following the second Appraisal Process, the Sponsor Group is not satisfied in its sole discretion, with the Appraisal Price (which determination it shall make within fifteen (15) days of completion of the Appraisal Process), then it may elect to initiate the Appraisal Process a third time (the "Third Election"), provided that, the Sponsor Group may not make a Third Election within 12 months of the Second Election. The Sponsors may not initiate the Appraisal Process more than three times. (c) If, following any Appraisal Process, the Sponsor Group is satisfied, in its sole discretion, with the Appraisal Price, the Sponsor Group shall so notify the Parent and the Company and the Parent or the Company may elect, within fifteen (15) days of receipt of notice of the Sponsor Group's approval of the Appraisal Price, in its sole discretion, to purchase for cash all of the Sponsor Shares from the Sponsors at the Appraisal Price by sending written notice to the Sponsors, and, in such event, the Sponsors shall sell all the Sponsor Shares to the Company and/or Parent. The closing of the purchase of the Shares from the Sponsors by the Company and/or Parent pursuant to this Section 4.1(c) shall occur no later than 30 days after notice of the Company or Parent's election to purchase. (d) If the Sponsor Group, in its sole discretion, has approved an Appraisal Price, but the Company and Parent elect not to purchase the Sponsors' Shares or fail to make an election within the 15-day time period referenced in clause (c) above, then the Sponsors shall have the right to compel a Sale of the Company pursuant to Section 4.1(e) (the "Sale Process"). (e) In accordance with Section 4.1(d) above, the Sponsor Group may elect to compel a Sale of the Company in accordance with the provisions of this Section 4.1(e) by providing written notice thereof to the Company. (i) The Stockholders and the Company promptly after receiving such notice will take, under the direction of the Sponsor Group, all actions reasonably necessary or desirable and will use their reasonable best efforts to cause the consummation of such Sale of the Company at the highest value reasonably available. Without limiting the foregoing, (i) each of Parent and the Company shall provide the Sponsors with prompt notice regarding any and all approvals, consents, notifications, waivers and other legal requirements applicable to it and necessary for the consummation of the proposed Sale of the Company, and shall use its reasonable best efforts to obtain all such approvals, consents, notifications and waivers, and comply with all such other legal requirements in a timely fashion, (ii) the Company shall hire an investment bank (chosen by the Sponsor Group, -10- but reasonably acceptable to the Company) to identify potential buyers, conduct an auction process and otherwise facilitate a Sale of the Company, (iii) if the proposed Sale of the Company is structured as a sale of assets or a merger or consolidation, or otherwise requires equityholder approval, subject to the approval of the terms of such proposed Sale of the Company by the Sponsor Group, in its sole discretion, the Stockholders and the Company will vote or cause to be voted all Shares that they hold or with respect to which such Stockholder has the power to direct the voting and which are entitled to vote on such transaction in favor of such transaction and will waive any appraisal rights which they may have in connection therewith, and (iv) subject to the provisions of 4.1(e)(iii) and to the approval of the Sale of the Company by the Sponsor Group, in its sole discretion, if the proposed Sale of the Company is structured as or involves a sale or redemption of Shares, the Stockholders will agree to sell their pro-rata share of the Shares being sold in such Sale of the Company on the terms and conditions approved by such Sponsor Group, and the Stockholders and the Company will execute any merger, asset purchase, security purchase, recapitalization or other sale agreement approved by such Sponsor Group (the "Definitive Sale Agreements"), and will make to the buyer the same representations, warranties, covenants, indemnities and agreements (other than non-competition agreements) as the Sponsor Group makes in connection with such Sale of the Company (except that in the case of representations and warranties pertaining specifically to, or covenants made specifically by, the Sponsor Group, the other Stockholders shall make comparable representations and warranties pertaining specifically to (and, as applicable, covenants by) themselves), and must agree to bear its ratable share (which shall be proportionate based on the value of Shares that are being sold in such Sale of the Company) of all liabilities of the Stockholders arising out of representations, warranties (other than those representations, warranties and covenants that pertain specifically to a given Stockholder), covenants, indemnities or other agreements made in the Definitive Sale Agreements. (ii) The obligations of the Stockholders with respect to the Sale of the Company are subject to the satisfaction of the following conditions: (A) upon the consummation of the Sale of the Company, all of the holders of a particular class or series of Shares shall receive the same form and amount of consideration per share, or amount of Shares, or if any holders of a particular class or series of Shares are given an option as to the form and amount of consideration to be received, all holders of such class or series will be given the same option, and (B) all holders of vested and exercisable rights to acquire a particular class or series of Shares will be given an opportunity to either (1) exercise such rights prior to the consummation of the Sale of the Company and participate in such sale as holders of such Shares or (2) upon the consummation of the Sale of the Company, receive in exchange for such rights consideration equal to the -11- amount determined by multiplying (x) the same amount of consideration per share, or amount of Shares received by the holders of such type and class of Shares in connection with the Sale of the Company less the exercise price per share, or amount of such rights to acquire such Shares by (y) the number of shares, or aggregate amount of Shares represented by such rights. (iii) Each Stockholder will bear its or his pro-rata share (based upon the relative amount of Shares sold) of the reasonable and customary costs of any Sale of the Company to the extent such costs are incurred for the benefit of all Stockholders and are not otherwise paid by the Company or the acquiring party. (iv) In no event will the auction process take more than 180 days (the "Auction Period"), unless Definitive Sale Agreements have been entered into prior to the end of the Auction Period. Unless Definitive Sale Agreements have previously been executed, the Sponsor Group shall have the right to terminate the Sale Process at any time during the Auction Period in its sole discretion (the "Sale Termination Right"). If (i) the Sponsor Group exercises the Sale Termination Right, or (ii) the Sale of the Company as contemplated by the Definitive Sale Agreements is not consummated (unless the failure to consummate is the result of a breach of the Definitive Agreements by a member of the Sponsor Group), then, at any time on or after 6 months after the date on which the Sponsor Group exercised the Sale Termination Date or the Definitive Sale Agreements terminated in accordance with their terms, as the case may be, the Sponsor Group may, again initiate their liquidity rights under this Article IV (commencing with Section 4.1(a)), subject to the terms of Section 4.1(b). If, (i) at the end of the Auction Period, there is no good faith, bona fide offer to acquire the Company, or (ii) the shareholders of Parent have the right to approve the Sale of the Company and vote against such transaction, then , the Sponsor Group may, in its sole discretion, either (i) exercise the exchange rights described in Section 4.2, or (ii) again and at any time initiate their liquidity rights under this Article IV (commencing with Section 4.1(a)), subject to the terms of Section 4.1(b). 4.2 Exchange Rights. If a Sale of the Company does not occur in accordance with the provisions of Section 4.1(c), then the Sponsor Group may elect to exchange all, but not less than all, of the Sponsor Shares for shares of common stock of Parent based upon the Appraisal Price of the Sponsor shares pursuant to a new Appraisal Process initiated at the time the Sponsor Group elects to exercise their exchange rights hereunder and the fair market value of the Parent's common stock determined by the average closing price of the Parent's common stock for the 45-day trading period immediately prior to the date of the exchange for Parent common stock (the "Exchange"). To the extent the number of shares to be received by Purchasers at the Appraisal Price constitutes -12- more than 19.9% of the outstanding capital stock of Parent (as determined pursuant to the rules of the New York Stock Exchange), then Purchasers will receive the balance in cash as a pro rata portion of the Appraisal Price. Upon written notice to Parent and the Company of the Sponsor Group's election to consummate such Exchange (the "Exchange Notice"), each of Parent and the Company shall (i) provide the Sponsors with prompt notice regarding any and all approvals, consents, notifications, waivers, filings, amendments and other legal requirements applicable to it and necessary for the consummation of the proposed Exchange, and shall use their reasonable best efforts to obtain all such approvals, consents, notifications, waivers, filings and amendments and shall comply with all such other legal requirements in a timely fashion, and (ii) take all other actions reasonably necessary or desirable and use their reasonable best efforts to cause the consummation of the Exchange. ARTICLE V REDEMPTION RIGHTS 5.1 Redemption of Sponsor Shares. At any time prior to a Public Offering becoming effective: (a) Parent shall provide the Sponsors with no less than thirty (30) days prior written notice of any event that will constitute a Parent Change of Control. If the Sponsor Group gives notice of its election (such election to be called the "Redemption Notice") within twenty (20) days after receipt of such notice from the Parent, to have the Company redeem its Shares, then, upon consummation of such Parent Change of Control (the "Redemption Date"), the Company shall be required to redeem, at the Redemption Price (as defined below), all of the Shares then held by the Sponsors (the "Redemption Shares"). The Redemption Notice must request redemption of all, and not less than all, of the Shares held by the Sponsors. (b) For purposes of this provision, a "Parent Change of Control" shall be deemed to have occurred when there has occurred (i) an acquisition by any "person" (as that term is used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act, as amended (the "Exchange Act") (or any successor item, regulation or act to the same effect)) of beneficial ownership, directly or indirectly, of securities of Parent representing more than fifty percent (50%) of the combined voting power of Parent's then outstanding securities; (ii) an acquisition by any "person" (as that term is used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act, as amended (the "Exchange Act") (or any successor item, regulation or act to the same effect)) of the right to appoint a majority of Parent's board of directors; or (iii) the sale of all or substantially all of the assets of Parent. (c) The redemption price for each Redemption Share (the "Redemption Price") shall be the Appraisal Price of each share of the Company's Common Stock on the date that the applicable Redemption Notice is first given under Section 5.1 (the "Determination Date"). (d) In consideration of the redemption of the Redemption Shares hereunder, the Company shall deliver to the Sponsors on the Redemption Date, the Redemption Price, in cash by certified check or by wire transfer of immediately available funds. -13- 5.2 Redemption Closing. The closing of the redemption of the Redemption Shares being redeemed by the Sponsors (the "Redemption Closing") shall take place at 10:00 a.m. at the offices of Weil, Gotshal & Manges LLP, 100 Federal Street, Boston, MA 02110 on the applicable Redemption Date, or at such other time and place as the Sponsors and the Company may agree. The Sponsors shall deliver to the Company at the Closing a certificate or certificates evidencing the Shares redeemed hereunder together with executed stock powers. 5.3 Failure to Redeem. If the Company fails to redeem all of the Redemption Shares on the Redemption Date, then the Company shall be deemed to have breached Section 5.1 hereof. If the Company's breach is due to insufficient funds, then those funds which are available to the Company will be used to redeem, pro rata, based on the aggregate Redemption Price, the maximum possible number of Redemption Shares. In the event of such a breach, in addition to any other remedies available to the Sponsors at law or in equity, between the Redemption Date and such time as the redemption is completed, the Redemption Price shall bear interest at the rate of twelve percent (12%) per annum, compounded annually; provided that such rate shall increase by 2% on the date that is six (6) months after the Redemption Date, and subject to applicable law, shall further increase by an additional 2% on the last day of every quarter thereafter, until such Redemption Shares are fully redeemed. If the Company redeems fewer than all of the Redemption Shares offered for redemption, the holders of the Shares not redeemed shall continue to receive the benefit of the rights and privileges afforded the Shares hereunder. ARTICLE VI PRE-EMPTIVE RIGHTS 6.1 Issuance of New Shares. i. Purchase Rights. If at any time after the date of this Agreement the Company proposes to issue or sell any Common Stock, Common Stock Equivalents or securities convertible into equity securities of the Company (collectively, "New Shares"), the Company shall first offer to sell to each Stockholder a portion of each type of such New Shares equal to the quotient determined by dividing (x) the number of Shares held, beneficially owned by such Stockholder, by (y) the total number of Shares outstanding immediately prior to such issuance or sale. A Stockholder shall be entitled to purchase all or any portion of their respective portions (as determined in the immediately preceding sentence) of such New Shares at the most favorable price and on the most favorable terms as such New Shares are to be offered. The holders of Shares shall further have a right of over-allotment such that to the extent a Stockholder (a "Rejecting Holder") does not does not exercise its right to purchase any of the New Shares, or exercises its rights for less than all of its pro rata share of the New Shares (as determined above), then each other Stockholder may elect to purchase its pro rata share (as determined above) of such New Shares which the Rejecting Holder does not elect to purchase. -14- ii. Offer Period. In order to exercise its purchase rights hereunder, each Stockholder must, within 30 days after receipt of written notice from the Company describing in reasonable detail the New Shares being offered, the purchase price thereof, the payment terms, the percentage of the New Shares initially available to such holder pursuant to Section 5.1(a) and the over-allotment right available in connection therewith, deliver a written notice to the Company describing its election to exercise its purchase rights hereunder. iii. Expiration of Offer Period. Upon the expiration of the offering periods described above, the Company shall be entitled to sell such New Shares which the Stockholders have not elected to purchase during the 180 days following such expiration on terms and conditions no more favorable to the purchasers thereof than those offered to the Stockholders of Stock. Any New Shares to be sold by the Company after such 180-day period must be reoffered to the Stockholders pursuant to the terms of this Section 6.1. iv. Exceptions to Purchase Rights. The provisions of this Section 6.1 will not apply to the following issuances of New Shares: 1. Common Stock or Common Stock Equivalents issued or to be issued to employees, officers or directors of, or consultants or advisors to the Company, pursuant to the 2005 Equity Incentive Plan, 2. Equity Securities issued in respect of or in exchange for Shares by way of a stock dividend, stock split or similar transaction, and 3. Equity Securities issued in the first Public Offering approved by the Board in accordance with the terms hereof. ARTICLE VII BOARD OBSERVERS AND ACCESS 7.1 Board Representation and Access. The Company agrees that, at any time prior to a Public Offering, in the event that any Sponsor loses its right to designate all of its directors pursuant to Section 2.1(b): (a) such Sponsor (an "Affected Sponsor") shall have the right to designate an employee of such Sponsor or its Affiliates as a non-voting observer (a "Non-Voting Observer") to the Board and who shall be such Sponsor's initial designee as a director of the Company so long as they are principals of such Sponsor, and any replacement shall be a principals of such Sponsor. The Non-Voting Observer attending a meeting of the Board shall be entitled to reimbursement from the Company for his or her reasonable out-of-pocket expenses (including travel) incurred in attending such meeting. -15- (b) The Non-Voting Observer shall be entitled to be present at all meetings of the Board and of each committee of the Board and such observer shall be notified of any meeting of the Board or committee, including such meeting's time and place, in the same manner as Board members and shall have the same access to information (including any copies of all materials distributed to members of the Board or a committee thereof) concerning the business and operations of the Company and at the same time as Board members and shall be entitled to participate in discussions and consult with, and make proposals and furnish advice to, the Board or committee without voting; provided, however, that the Company shall not be under any obligation to take any action with respect to any proposals made or advice furnished by the Non-Voting Observer, and nothing herein shall prevent the Board (or any committee thereof) from acting by written instrument to the extent permitted by applicable law. The Non-Voting Observer shall have a duty of confidentiality to the Company comparable to the duty of confidentiality of a director of the Company. (c) Notwithstanding the foregoing, if an issue is to be discussed or otherwise arises at any meeting of the Board or any committee of the Board which, in the reasonable judgment of the Board or a majority of the members of such committee, based on advice of legal counsel, cannot be discussed in the presence of the Non-Voting Observer in order to avoid a conflict of interest on the part of the Non-Voting Observer or to preserve an attorney-client or accountant-client or any other available privilege, then such issue may be discussed without the Non-Voting Observer being present and may be deleted from any materials being distributed in connection with any meeting at which such issues are to be discussed, so long as the Non-Voting Observer is given notice of the occurrence of such meeting and the deletion of such materials. (d) The Company will, and will cause its Subsidiaries to, upon reasonable notice at reasonable times from time to time, at the sole expense of the Affected Sponsor, provide the Affected Sponsor (and any other parent company of the Affected Sponsor that is a venture capital operating company) reasonable opportunities to routinely consult with and advise the management of the Company and its subsidiaries on all matters relating to the operation of the Company and each such Subsidiary. The Company shall, and shall cause its subsidiaries to give, subject to compliance with applicable laws and confidentiality obligations to third parties, the Affected Sponsor (and any other parent company of the Affected Sponsor that is a venture capital operating company) and their authorized representatives reasonable access during normal business hours to all books of account, facilities and properties of the Company and its subsidiaries and permit the Affected Sponsor (and any parent company of the Affected Sponsor that is a venture capital operating company) to make such copies and inspections thereof as any such Person may reasonably request and discuss the affairs, finances and accounts with the officers thereof; provided that the Affected Sponsor shall not exercise such rights more often than two times during any calendar year, and such additional times as may be reasonably required in order to qualify any of the Shares as a venture capital investment (as defined in the Department of Labor Regulation Sction. 2510.3-101). Any such visit will be at the expense of the Affected Sponsor (or such other parent company of the Affected Sponsor that is a venture capital operating company). (e) If (i) reasonably required, in order to qualify any of the Shares as a venture capital investment (as defined in the Department of Labor Regulation Section 2510.3-101) or (ii) the -16- Affected Sponsor is unable for any reason to appoint a Non-Voting Observer to the Board (and each of the committees, except the compensation committee, thereof), then the Company shall promptly provide true and correct copies of all documents, reports, financial data, and such additional financial and other information with respect to the Company, and its subsidiaries as the Affected Sponsor (and any other parent company of the Affected Sponsor that is a venture capital operating company) may from time to time reasonably request. 7.2 Information Rights. Prior to the consummation of the first Public Offering, the Company shall provide to each of the Sponsors the following information: (a) Within ninety (90) days after the end of each fiscal year, an audited consolidated balance sheet of the Company and its Subsidiaries as of the end of such fiscal year, and an audited consolidated statement of income and statement of cashflows of the Company and its Subsidiaries for such year, in each case prepared in accordance with generally accepted accounting principles and setting froth in comparative form the figures for the previous fiscal year, all in reasonable detail, and audited by the Company's independent public accountants. (b) Within forty five (45) days after the end of each of the first three fiscal quarters of each fiscal year, unaudited consolidated balance sheets of the Company and its Subsidiaries as of the end of such fiscal quarter, unaudited consolidated statements of income, and unaudited consolidated statements of cash flows for such fiscal quarter and for the current fiscal year to date. Such financial statements shall be prepared in accordance with generally accepted accounting principles consistently applied (other than omission of accompanying notes) and compared with both the actual results from the corresponding quarter of the previous fiscal year and the budget for the current fiscal year, all in reasonable detail and signed by the principal financial or accounting officer of the Company. (c) Within twenty (20) days after the end of each month of each fiscal year, the Company's monthly reporting package, including unaudited consolidated statements of income. Such financial statements shall be prepared in accordance with generally accepted accounting principles consistently applied (other than omission of accompanying notes) and compared with both the actual results from the corresponding month of the previous fiscal year and the budget (including any reforecasts) for the current fiscal year, all in reasonable detail and signed by the principal financial or accounting officer of the Company. (d) As soon as reasonably practicable and in accordance with Company's past practice (but in no extent later than the first day of such fiscal year), a copy of an annual budget with line items compared to the previous year's budget and an annual strategic plan for such fiscal year. ARTICLE VIII AMENDMENT AND TERMINATION 8.1 Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective against the Company or the Stockholders unless such modification, amendment or waiver is approved in -17- writing by the Company and (i) holders of a majority of the Shares held by THL, (ii) holders of a majority of the Shares held by TPG, and (iii) the Parent. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. 8.2 Termination of Agreement. This Agreement will terminate in respect of all Stockholders (a) with the written consent of the Company and (i) holders of a majority of the Shares held by THL, (ii) holders of a majority of the Shares held by TPG, and (iii) the Parent; (b) upon the dissolution, liquidation or winding-up of the Company; (c) upon the consummation of a Sale of the Company; or (d) upon a Public Offering. 8.3 Termination as to a Party. Any Person who ceases to hold any Shares shall cease to be a Stockholder and shall have no further rights or obligations under this Agreement. ARTICLE IX MISCELLANEOUS 9.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth or as referenced below: "Affiliate" of any particular Person means any other Person Controlling, Controlled by or under common Control with such particular Person or, in the case of a natural Person, any other member of such Person's Family Group. "Agreement" has the meaning set forth in the preamble. "Appraisal Price" means the "fair market value" of each Share determined in accordance with this definition by one or more of the following independent investment banking firms (the "Firms") acting as an appraiser (an "Appraiser"): Bank of America Securities, LLC, Bear, Stearns & Co. Inc., Citigroup Global Markets Inc., Credit Suisse First Boston LLC, Deutsche Bank AG, Goldman Sachs Group, Inc., J.P. Morgan Securities Inc. and Morgan Stanley, provided that if all such Firms have been exhausted by either having already rendered a valuation or the Sponsor Group or Parent has approached such Firms to engage them and such Firms have declined such engagement, then the parties will cooperate and use their reasonable best efforts to mutually agree upon another independent, nationally recognized investment banking firm. Each party who selects an Appraiser must make such selection within fifteen (15) days of the event triggering the Appraisal. Each party selecting an Appraiser hereunder shall direct the Appraiser to deliver its valuation within thirty (30) days of being retained, and such party shall cooperate with the Appraiser and use its reasonable best efforts to cause such valuation to be delivered within such time frame. The expenses of any Appraiser engaged in connection with the Appraisal Process shall be divided evenly among the parties. The Appraisal Price shall be determined as follows: (a) Each Appraiser retained hereunder shall determine the fair market per share value of the Sponsor Shares assuming the sale of the entire equity interest of -18- the Company to an independent willing buyer in an arms'-length transaction under then current prevailing market conditions for the sale of all of the stock of comparable business enterprises intended for continued use as part of a going concern. Each Appraiser shall assume that in any such transaction each shareholder of the Company would receive the same per share consideration, and the Appraiser shall not apply any discount for minority interest or illiquidity of the Sponsor Shares, nor any control premium. (b) The initial Appraiser shall be selected by the Sponsor Group (the "Sponsor Appraiser"). If the Parent does not accept the per share valuation arrived at by the Sponsor Appraiser, then the Parent shall promptly notify THL and TPG thereof and Parent shall retain one of the Firms as a second Appraiser (the "Parent Appraiser"). (c) If a valuation is delivered by the Parent Appraiser in accordance with paragraph (b), and the Parent Appraiser and the Sponsor Appraiser arrive at per share valuations (the "Initial Valuations") within ten percent (10%) of each other, the mathematical mean of the Initial Valuations shall be deemed to be the Appraisal Price. If such Appraisers shall arrive at Initial Valuations that are not within ten percent (10%) of each other but are within twenty percent (20%) of each other, then the Parent Appraiser and the Sponsor Appraiser, as soon as reasonably practicable, shall jointly retain a Firm to act as a third Appraiser (the "Third Appraiser") on reasonable terms agreed to by the Sponsor Group and Parent in good faith. In the event the valuation of the Third Appraiser is greater than the higher of the Initial Valuations, then the Appraisal Price shall be the higher of the Initial Valuations. In the event the valuation of the Third Appraiser is less than the lower of the Initial Valuations, the Appraisal Price shall be the lower of the Initial Valuations. If the valuation of the Third Appraiser is not greater than the higher of the Initial Valuations or lower than the lower of the Initial Valuations, the Appraisal Price shall be the mathematical mean of (i) the per share valuation arrived at by the Third Appraiser, and (ii) the Initial Valuation that is closest to that of the per share valuation arrived at by the Third Appraiser. (d) If the Initial Valuations are not within twenty percent (20%) of each other, then neither valuation shall be used and the Sponsor Group will retain a new Firm to act as Sponsor Appraiser (the "Second Sponsor Appraiser") and Parent shall retain a new Firm to act as Parent Appraiser (the "Second Parent Appraiser"). If the per share valuations arrived at by the Second Sponsor Appraiser and Second Parent Appraiser (the "Second Valuations") are within twenty percent (20%) of each other, then the Appraisal Price shall be determined as set forth in paragraph (c) above. If the Second Valuations are not within twenty percent (20%) of each other, then the Second Valuations shall not be used and the Second Parent Appraiser and the Second Sponsor Appraiser, as soon as reasonably practicable, shall jointly select a Firm to act as a final Appraiser (the "Final Appraiser") on reasonable terms agreed to by -19- the Sponsor Group and Parent in good faith. So long as the valuation of the Final Appraiser is not higher than the higher of the Second Valuations or lower than the lower of the Second Valuations, the valuation arrived at by the Final Appraiser shall be deemed to be the Appraisal Price. In the event the valuation of the Final Appraiser is greater than the higher of the Second Valuations, then the Appraisal Price shall be the higher of the Second Valuations. In the event the valuation of the Final Appraiser is less than the lower of the Second Valuations, the Appraisal Price shall be the lower of the Second Valuations. "Appraisal Process" shall mean the process described in the definition of Appraisal Price in order to arrive at the Appraisal Price. "Closing Date" has the meaning ascribed thereto in the Stock Purchase Agreement between Fidelity National Information Services, Inc., Fidelity National Financial, Inc. and the Purchasers named therein. "Common Stock" means, collectively the common shares of the Company and any other class or series of authorized capital stock of the Company which is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding up of the successor to the Company. "Common Stock Equivalents" means (without duplication with any Common Stock or other Common Stock Equivalents) rights, warrants, options, convertible Shares, or exchangeable Shares or indebtedness, or other rights, exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock or securities exercisable for or convertible or exchangeable into Common Stock, as the case may be, whether at the time of issuance or upon the passage of time or the occurrence of some future event. "Company" has the meaning set forth in the preamble. "Control" (including, with correlative meaning, all conjugations thereof) means with respect to any Person, the ability of another Person to control or direct the actions or policies of such first Person, whether by ownership of voting Shares, by contract or otherwise. "Excluded Shares" has the meaning set forth in Section 3.4. "Exempted Arrangements" means the arrangements provided in (i) the Management Agreement by and between the Company and THL Advisors V, LLC of even date herewith, (ii) the Management Agreement by and between the Company and TPG GenPar IV, L.P. of even date herewith, (iii) the intercompany agreements listed on Schedule 1 hereto, and (iv) any contracts or transactions involving the Parent or one of its Subsidiaries (other than the Company or its Subsidiaries) on the one hand, and the Company or one of its Subsidiaries on the other hand, involving payments of less than $500,000 annually in the aggregate by either party and which do not restrict the ability of the Company and its Subsidiaries to engage in any activities. -20- "Exempt Transfer" means a Transfer of Shares (a) pursuant to Section 3.2 hereof, (b) pursuant to Section 4.1 hereof, (c) upon the death of the holder pursuant to the applicable laws of descent and distribution, or (d) solely to or among such Person's Family Group, (d) incidental to the exercise, conversion or exchange of such Shares in accordance with their terms, any combination of shares (including any reverse stock split) or any recapitalization, reorganization or reclassification of, or any merger or consolidation involving, the Company. Solely with respect to Sponsor Shares, an Exempt Transfer shall also include a Transfer of Sponsor Shares (a) to and among the Affiliates of the Sponsors, partners of the Sponsors and the partners (including, without limitation, any Limited Partner of such Sponsor), Stockholders, employees and Affiliates of such partners or Affiliates, and (b) pursuant to a pledge of such Sponsor Shares to an unaffiliated financial institution. "Family Group" means, with respect to any individual, such individual's spouse and descendants (whether natural or adopted) and any trust, partnership, limited liability company or similar vehicle established and maintained solely for the benefit of (or the sole members or partners of which are) such individual, such individual's spouse and/or such individual's descendants. "Financing" has the meaning ascribed thereto in the Stock Purchase Agreement between Fidelity National Information Services, Inc., Fidelity National Financial, Inc. and the Purchasers named therein. "Material Subsidiary" means a direct or indirect Subsidiary of the Company which represents 10% or more of the assets or revenues of the Company and its Subsidiaries, taken together as a whole. "Other Holder" has the meaning given such term in Section 3.2(a). "Ownership Percentage" means, for each Stockholder and with respect to a type and class of security, the percentage obtained by dividing the number of shares of such security held by such Stockholder by the total number of shares of such security (other than Excluded Shares) outstanding. "Person" means an individual, a partnership, a joint venture, a corporation, an association, a joint stock company, a limited liability company, a trust, an unincorporated organization or a government or any department or agency or political subdivision thereof. "Pro Rata Amount" means, with respect to any Stockholder, the quotient obtained by dividing (i) the sum of the aggregate number of shares of Common Stock held by such Stockholder by (ii) the aggregate number of issued and outstanding shares of Common Stock held by all Stockholders. "Public Offering" means an offering and sale to the public of any shares or equity securities of the Company or any of its subsidiaries pursuant to a registration statement in the United States. -21- "Qualified Public Offering" means a Public Offering whereby the offered shares trade on a national securities exchange or NASDAQ, and in which, at the election of the Company, either one of the following criteria is fulfilled: (A) (i) the price per share paid by the public in such offering is at least $15.00 and less than $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (A)(i) above by that number of shares (the "1.5 Cap") equal to 15% of the outstanding shares of the Company after giving effect to the offering, or (B) (i) the price per share paid by the public in such offering is at least $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (B)(i) above by that number of shares (the "1.75 Cap") equal to 12.5% of the outstanding shares of the Company after giving effect to the offering. Any per share price contained in this definition shall be subject to adjustment for stock splits, combinations and similar events. "quorum" means, with respect to any meeting of directors of the Board of the Company, a group of directors present at any meeting that includes a number of directors designated by Parent that constitutes a majority of directors present at any such meeting. "Sale of the Company" means the consummation of a transaction, whether in a single transaction or in a series of related transactions that are consummated contemporaneously (or consummated pursuant to contemporaneous agreements), with any other Person or group of Persons on an arm's-length basis other than an Affiliate of any Sponsor, pursuant to which such party or parties (a) acquire (whether by merger, stock purchase, recapitalization, reorganization, redemption, issuance of capital stock or otherwise) more than 50% of the voting stock of the Company or (b) acquire assets constituting all or substantially all of the assets of the Company and its Subsidiaries on a consolidated basis; provided, however, that in no event shall a Sale of the Company be deemed to include any transaction effected for the purpose of (i) changing, directly or indirectly, the form of organization or the organizational structure of the Company or any of its Subsidiaries or (ii) contributing stock to entities controlled by the Company. "Sale Notice" has the meaning given such term in Section 3.2(a). "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933 and the rules and regulation promulgated thereunder, all as the same have been or may be amended from time to time. "Selling Holder" has the meaning given such term in Section 3.2(a). "Shares" means, collectively, the shares of Common Stock or other equity securities of the Company held by the Stockholders. "Sponsor Group" has the meaning given such term in Section 4.1(a). "Sponsor Shares" means Shares held by the Sponsors. "Stockholder(s)" has the meaning given such term in the preamble. -22- "Subsidiary" means any corporation with respect to which another specified corporation has the power to vote or direct the voting of sufficient Shares to elect directors having a majority of the voting power of the board of directors of such corporation. "Tag-Along Notice" has the meaning given such term in Section 3.2(a). "Transfer" means (in either the noun or the verb form, including with respect to the verb form, all conjugations thereof within their correlative meanings) with respect to any security, the gift, sale, assignment, transfer, pledge, hypothecation or other disposition (whether for or without consideration, whether directly or indirectly, and whether voluntary, involuntary or by operation of law) of such security or any interest therein. "Transferee" means any Person to whom a Stockholder may Transfer Shares. 9.2 Legends. v. Each certificate or instrument evidencing Shares and each certificate or instrument issued in exchange for or upon the Transfer of any such Shares (if such Shares remain subject to this Agreement after such Transfer) shall be stamped or otherwise imprinted with a legend (as appropriately completed under the circumstances) in substantially the following form: "THE SHARES REPRESENTED BY THIS CERTIFICATE CONSTITUTE SHARES UNDER A CERTAIN STOCKHOLDERS AGREEMENT DATED AS OF [ ], 2005 AMONG THE ISSUER OF SUCH SHARES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S STOCKHOLDERS AND, AS SUCH, ARE SUBJECT TO CERTAIN VOTING PROVISIONS, PURCHASE RIGHTS AND RESTRICTIONS ON TRANSFER SET FORTH IN THE STOCKHOLDERS AGREEMENT. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST." vi. Each instrument or certificate evidencing Shares and each instrument or certificate issued in exchange or upon the Transfer of any Shares shall be stamped or otherwise imprinted with a legend substantially in the following form: "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD UNLESS IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE (AND, IN SUCH CASE, AN -23- OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY SHALL HAVE BEEN DELIVERED TO THE COMPANY TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE SECURITIES ACT)." vii. Whenever in the opinion of the Company and counsel reasonably satisfactory to the Company (which opinion shall be delivered to the Company in writing) the restrictions described in any legend set forth above cease to be applicable to any Shares, the holder thereof shall be entitled to receive from the Company, without expense to the holder, a new instrument or certificate not bearing a legend stating such restriction. 9.3 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 9.4 Entire Agreement. Except as otherwise expressly set forth herein, this document embodies the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. 9.5 Successors and Assigns. Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of and be enforceable by the Company and its successors and assigns and the Stockholders and any subsequent holders of Shares and the respective successors and assigns of each of them, so long as they hold Shares. 9.6 Counterparts. This Agreement may be executed in separate counterparts (including by means of telecopied signature pages) each of which shall be an original and all of which taken together shall constitute one and the same agreement. 9.7 Remedies. The Company and the Stockholders shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement (including costs of enforcement) and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that the Company or any Stockholder may in its or his sole discretion apply to any court of law or equity of competent jurisdiction for specific performance or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement. -24- 9.8 Notices. Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or mailed first class mail (postage prepaid) or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Company's records, or at such address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder when sent by facsimile (receipt confirmed) delivered personally, 5 days after deposit in the U.S. mail and one day after deposit with a reputable overnight courier service. Notices to the Company will be sent to: Fidelity National Information Services, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers and Acquisitions Counsel Facsimile: (904) 357-1026 with copies to: Thomas H. Lee Partners, L.P. 100 Federal Street Boston, MA 02110 Attention: Thomas M. Hagerty and Seth Lawry Facsimile: (617) 227-5514 Texas Pacific Group 345 California Street, Suite 3300 San Francisco, CA 94104 Attention: Jonathan Coslet and Marshall Haines Facsimile: (415) 743-1501 Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra, Esq. Marilyn French, Esq. Facsimile: (617) 772-8333 -25- Notices to any Stockholder will be sent to the address set forth opposite such Stockholder's name on Exhibit A attached hereto, with a copy to: Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra, Esq. Marilyn French, Esq. Facsimile: (617) 772-8333 and, if such Stockholder is a TPG Holder, with a copy to: Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 Attention: David Leinwand Facsimile: (212) 225-2838 9.9 Governing Law. The Delaware General Corporation Laws shall govern all questions arising under this Agreement concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity and interpretation of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Delaware applicable to contracts made and to be performed in the State of Delaware. The parties hereto hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any State or Federal court sitting in New York, NY over any suit, action or proceeding arising out of or relating to this Agreement. The parties hereby agree that service of any process, summons, notice or document by U.S. registered mail addressed to any such party shall be effective service of process for any action, suit or proceeding brought against a party in any such court. The parties hereto hereby irrevocably and unconditionally waive any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The parties hereto agree that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon any party and may be enforced in any other courts to whose jurisdiction any party is or may be subject, by suit upon such judgment. 9.10 Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. 9.11 Tax-Free Reorganization Parent may propose and the Sponsors shall consider, at their sole and absolute discretion, transactions by and between the Company and Parent that would allow Parent to consummate a tax free spin off of its shares in the Company on such terms as may be mutually agreeable to the Sponsors and FNF. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] [SIGNATURE PAGES FOLLOW] -26- COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and year first above written. FIDELITY NATIONAL FINANCIAL, INC. By: _________________________________________________ Name: Title: FIDELITY NATIONAL INFORMATION SERVICES, INC. By: _________________________________________________ Name: Title: THOMAS H. LEE EQUITY FUND V, L.P. By: THL Equity Advisors V, LLC, its general partners By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: _________________________________________________ Name: Title: Managing Director COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT THOMAS H. LEE PARALLEL FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: _________________________________________________ Name: Title: Managing Director THOMAS H. LEE CAYMAN FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: _________________________________________________ Name: Title: Managing Director THOMAS H. LEE INVESTORS LIMITED PARTNERSHIP By: THL Investment Management Corp., its general partner By: _________________________________________________ Name: Thomas H. Lee Title: Chief Executive Officer COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY I LLC By: Putnam Investments Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By: _________________________________________________ Name: Title: PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY II LLC By: Putnam Investments Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By: _________________________________________________ Name: Title: PUTNAM INVESTMENTS HOLDINGS, LLC By: Putnam Investments, LLC, its managing member By: _________________________________________________ Name: Title: COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT TPG PARTNERS IV, L.P. By: TPG GenPar IV, L.P., its general partner By: TPG Advisors IV, Inc., its general partner By: _________________________________________________ Name: Title: TPG PARTNERS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _________________________________________________ Name: Title: TPG PARALLEL III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _________________________________________________ Name: Title: TPG INVESTORS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _________________________________________________ Name: Title: COUNTERPART SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT FOF PARTNERS III, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _________________________________________________ Name: Title: FOF PARTNERS III-B, L.P. By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _________________________________________________ Name: Title: TPG DUTCH PARALLEL III, C.V. By: TPG GenPar Dutch, L.L.C., its general partner By: TPG GenPar III, L.P., its general partner By: TPG Advisors III, Inc., its general partner By: _________________________________________________ Name: Title: SCHEDULE 1 CAPITAL EXPENDITURES
FY 2005 FY 2006 FY 2007 - ------- ------- ------- 171,290 152,413 137,901
EX-99.2 4 a04306exv99w2.txt EXHIBIT 99.2 EXHIBIT 99.2 NON-COMPETITION AND NON-SOLICITATION AGREEMENT This Non-competition and Non-solicitation Agreement (this "Agreement") is dated as of ___________, 2005, by and among Fidelity National Financial, Inc., a Delaware corporation ("Parent"), and Fidelity National Information Services, Inc., a Delaware corporation (the "Company"). Any terms not otherwise defined herein shall have the meanings ascribed to them in that certain Stock Purchase Agreement dated as of December [__], 2004 (the "Purchase Agreement"), by and among Parent, the Company and the purchasers named therein (the "Purchasers"). WITNESSETH: WHEREAS, pursuant to the terms of the Purchase Agreement, the Purchasers are purchasing from the Company, and the Company is selling to the Purchasers, common stock of the Company initially representing 25% of its outstanding capital stock; WHEREAS, following consummation of the transactions contemplated by the Purchase Agreement, Parent shall own 75% of the Company's outstanding capital stock, and will receive substantial benefits in connection with the transactions contemplated by the Purchase Agreement; and WHEREAS, the execution and delivery of this Agreement is a condition precedent to the Purchasers' closing the transactions contemplated by the Purchase Agreement. NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Non-Competition. (a) For a period (the "Term") commencing on the date hereof and continuing until the first anniversary of the date (the "Separation Date") Parent ceases to beneficially own at least a majority of the outstanding capital stock of the Company, Parent agrees that it shall not, and shall cause its Affiliates (other than the Company or its Subsidiaries) not to, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control, other than their ownership and control of the Company and its Subsidiaries, any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in a Competitive Business (defined below). (b) For purposes hereof, "Competitive Business" shall mean: (i) providing (A) retail bank core processing systems, (B) customer channel-solutions (online-retail and commercial, ATM, branch, teller and call center), (C) consumer lending and servicing systems, (D) commercial lending and servicing systems, including mortgage loan origination and servicing systems, and (E) data center outsourcing services to credit unions, community banks, thrifts, data centers, banks and other financial institutions; and (ii) providing real estate tax, credit, flood, default and appraisal services and multiple listing software and services to financial institutions and loan servicers (c) Notwithstanding the foregoing, nothing contained in this Agreement shall prevent Parent from: (i) Engaging in any of the activities set forth on Schedule 1 hereto ("Permitted Competitive Business Activity"); (ii) Acquiring control of a business which is engaged in a Competitive Business (an "Acquisition") and continuing to conduct such Competitive Business if, and only if, Parent presents the opportunity to make the Investment to the Board of Directors of the Company (the "Board") and (A) Parent's designees on the Board have voted in favor of the Company or one of its Subsidiaries making such Investment, and (B) the Purchasers' designees on the Board have voted against the Company or any of its Subsidiaries making such Investment; provided that, Parent has consummated the Investment on the same terms presented to the Board. Notwithstanding the foregoing, nothing contained in this clause (c)(ii) shall permit Parent to conduct any activities that constitute a Competitive Business through such acquired entity if such type of activities were not conducted by the acquired entity at the time of the Acquisition; (iii) Acquiring control of a business (A) which earns less than 10% of its annual revenues from engaging in a Competitive Business ("Minor Competitive Activity"); provided, however that such Minor Competitive Activity shall comprise less than 10% of the annual revenues of the acquired business during the entire Term hereof, or (B) which earns more than 10%, but less than 50% of its annual revenues from engaging in a Competitive Business ("Divestible Competitive Activity"); provided, however that such Divestible Competitive Activity shall be offered to the Company within thirty (30) days after closing such acquisition at a price equal to that paid by the Parent or, if such price was not separately determined, at fair market value as determined by mutual consent of the parties or a mutually agreed upon appraisal process; or 2 (iv) being a passive owner of less than five percent (5%) of the outstanding stock of a corporation which is publicly traded and is engaged in a Competitive Business. 2. Severability. Each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any other clauses of the Agreement. If one or more of the provisions contained herein shall for any reason be held to be excessively broad in scope, activity, subject or otherwise so as to be unenforceable at law, such provision(s) shall be construed by the appropriate judicial body by limiting or reducing it (or them) so as to be enforceable to the maximum extent under the applicable law. 3. Amendments; Waiver. Any amendment to or modification of this Agreement, or any waiver of any provision hereof, shall be in writing and signed by the Company and Parent, and shall be approved by the Purchasers. Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof. 4. Assignment; Successors. The Company shall have the right to assign this Agreement to its successors and assigns. All covenants and agreements hereunder shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. 5. Equitable Relief. Parent agrees that a breach of this Agreement will result in irreparable harm to the Company and that money damages would not be a sufficient remedy for any breach of this Agreement, and that the Company shall be entitled, in addition to all other remedies available to it, to seek equitable relief, including injunction and specific performance, without the necessity of posting a bond or other security as a result of a breach or threatened breach of this Agreement. 6. Governing Law; Forum Selection Clause. This Agreement and any claims arising out of this Agreement (or any other claims arising out of the relationship between the parties) shall be governed by and construed in accordance with the laws of the State of New York and shall in all respects be interpreted, enforced and governed under the internal and domestic laws of such state, without giving effect to the principles of conflicts of laws of such state. Any claims or legal actions by one party against the other may be commenced and maintained in any state or federal court located in such state, and the parties hereby submit to the jurisdiction and venue of any such court. 7. Enforcement. The Purchasers shall have the right to enforce the provisions of this Agreement on behalf of the Company, including the right to commence legal proceedings. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 3 IN WITNESS WHEREOF, the undersigned has executed this Agreement as a sealed instrument as of the date first above written. COMPANY: FIDELITY NATIONAL INFORMATION SERVICES, INC. By:_______________________________________ Name:_____________________________________ Title:____________________________________ PARENT: FIDELITY NATIONAL FINANCIAL, INC. By:_______________________________________ Name:_____________________________________ Title:____________________________________ 4 SCHEDULE 1 Title insurance underwriting Title insurance agency services Escrow and closing services Title insurance on foreclosure transactions Sales of title information Title plant maintenance Title and escrow system software development and sales of software Title recording services Real estate information sold in connection with providing title and escrow services Relocation services Real estate appraisal services(1) Property inspection services Real estate default and foreclosure services(1) Loan processing and fulfillment services conducted by FNF Canada for banks in Canada.(1) - ------------------- (1) Such activities are Permitted Competitive Business Activities only if and so long as they do not constitute a material amount of Parent's revenues. EX-99.3 5 a04306exv99w3.txt EXHIBIT 99.3 EXHIBIT 99.3 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as of _______________, 2005 by and among (i) Fidelity National Information Services, Inc., a Delaware corporation (the "Company"), and the Securityholders (as herein defined). Certain capitalized terms used herein are defined in Section 1.1. The parties hereto agree as follows: ARTICLE 1 DEFINITIONS 1.1 Definitions. "Affiliate" of any particular Person means any other Person Controlling, Controlled by or under common Control with such particular Person or, in the case of a natural Person, any other member of such Person's Family Group. "Agreement" has the meaning set forth in the preamble. "Board" or "Board of Directors" means the Board of Directors of the Company. "Closing Date" has the meaning given such term in the Stock Purchase Agreement. "Common Stock" means the Company's common stock. "Company" has the meaning set forth in the preamble. "Company Qualified Public Offering" has the meaning set forth in Section 2.1(b). "Demand Registration" has the meaning given to such term in Section 2.1(a). "Employee" means each of the other Securityholders that are then employees of the Company. "FNF" means Fidelity National Financial, Inc. "Incidental Registration" has the meaning given such term in Section 2.2(a). "Indemnified Party" has the meaning given such term in Section 2.6(a). "Limited Partner" means a limited partner of THL. "Losses" has the meaning given such term in Section 2.6(a). "NASD" has the meaning given such term in Section 2.4(j). "NASDAQ" means the National Association of Securities Dealers Automated Quotation System. "Person" means an individual, a partnership, a joint venture, a corporation, an association, a joint stock company, a limited liability company, a trust, an unincorporated organization or a government or any department or agency or political subdivision thereof. "Proceeding" has the meaning given such term in Section 2.6(c). "Public Offering" means an offering and sale to the public of any equity securities of the Company or any of its subsidiaries pursuant to an effective registration statement filed with the SEC pursuant to the Securities Act, as then in effect, provided that a Public Offering shall not include an offering made in connection with a business acquisition or combination or an employee benefit plan. "Qualified Public Offering" means a Public Offering whereby the offered shares trade on a national securities exchange or NASDAQ, and in which, at the election of the Company, either one of the following criteria is fulfilled: (A) (i) the price per share paid by the public in such offering is at least $15.00 and less than $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (A)(i) above by that number of shares (the "1.5 Cap")equal to 15% of the outstanding shares Company after giving effect to the offering, or (B) (i) the price per share paid by the public in such offering is at least $17.50, and (ii) the gross proceeds to the Company would at least equal an amount obtained by multiplying the per share price in (B)(i) above by that number of shares (the "1.75 Cap") equal to 12.5% of the outstanding shares Company after giving effect to the offering. Any per share price contained in this definition shall be subject to adjustment for stock splits, combinations and similar events. "Registrable Shares" means (i) Common Stock, issued or issuable (upon conversion of warrants, or otherwise) to any Securityholder, excluding such shares that (a) have been sold pursuant to a Registration Statement, or (b) are eligible to be sold or distributed in the United States pursuant to Rule 144 (including, without limitation, Rule 144(k)) in a single transaction by any Securityholder, and (ii) Common Stock to be registered and sold pursuant to Section 2.1(b). "Registration Expenses" means all amounts payable by the Company pursuant to Section 2.5. "Registration Notice" has the meaning given such term in Section 2.1(a). "Registration Request" has the meaning given such term in Section 2.1(a). "Registration Statement" means any registration statement of the Company under which any of the Registrable Shares are included therein pursuant to the provisions of this 2 Agreement, including the prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. "Requesting Holder" has the meaning given such term in Section 2.1(a). "Rule 144" means Rule 144 adopted under the Securities Act (or any successor rule or regulation). "Rule 144 Sale" means a sale of Common Stock to the public through a broker, dealer or market-maker pursuant to the provisions of Rule 144 (other than Rule 144(k) prior to a Public Offering) adopted under the Securities Act (or any successor rule or regulation). "SEC" means the Securities and Exchange Commission. "Securityholder(s)" means (i) the stockholders listed on Annex A hereto and their respective successors, assignees and transferees who execute a counterpart to this Agreement, and (ii) those Persons who acquire Registrable Shares in the future and become a party hereto. "Securities Act" means the Securities Act of 1933, as amended from time to time. "Selling Securityholder" means a Securityholder selling its shares pursuant to the terms of this Agreement. "Shelf Registration" has the meaning given such term in Section 2.1(a). "Sponsor Group" has the meaning given such term in Section 2.1(a) "Sponsors" means collectively, the THL Holders and TPG Holders. "Stockholders Agreement" means that certain Stockholders' Agreement dated as of the date hereof among the Company and the other parties thereto. "Subsidiary" means any corporation with respect to which another specified corporation has the power to vote or direct the voting of sufficient securities to elect directors having a majority of the voting power of the board of directors of such corporation. "THL Holders" means collectively, Thomas H. Lee Equity Fund V, L.P., a Delaware limited partnership, Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., Thomas H. Lee Investors Limited Partnership, Putnam Investments Holdings, LLC, Putnam Investments Employees' Securities Company I LLC, and Putnam Investments Employees' Securities Company II, LLC. 3 "TPG Holders" means collectively, TPG Partners III, L.P., TPG Parallel III, L.P., TPG Investors III, L.P., FOF Partners III, L.P., FOF Partners III-B, L.P., TPG Dutch Parallel III, C.V., and TPG Partners IV, L.P. "Transfer" means (in either the noun or the verb form, including with respect to the verb form, all conjugations thereof within their correlative meanings) with respect to any security, the gift, sale, assignment, transfer, pledge, hypothecation or other disposition (whether for or without consideration, whether directly or indirectly, and whether voluntary, involuntary or by operation of law) of such security or any interest therein. ARTICLE 2 REGISTRATION RIGHTS 2.1 Demand Registrations. (a) Requests for Registration of Registrable Shares Owned by the Sponsors. Subject to the provisions of this Article 2, each of (i) FNF and (ii) subject to the provisions of 2.1(f), the holders of at least 75% of the Registrable Shares then owned by the Sponsors (the "Sponsor Group"), shall have the right to request registration under the Securities Act (the "Demand Right") of all or any portion of the Registrable Shares held by such Securityholders by delivering a written notice to the principal business office of the Company, which notice identifies the Person(s) requesting registration (the "Requesting Holders") and specifies the number of Registrable Shares to be included in such registration (the "Registration Request"); provided, unless FNF and the Sponsor Group otherwise consent, if the Company has not already consummated a Public Offering, the initial Demand Right must be for a Qualified Public Offering. Any such requested registration shall herinafter be referred to as a "Demand Registration." With respect to any Demand Registration, the Requesting Holders may request the Company to effect a registration of the Registrable Shares under a registration statement pursuant to Rule 415 under the Securities Act (a "Shelf Registration"). (b) Request for Registration of Registrable Shares by the Company for its own Account. Subject to the provisions of this Article 2, each of (i) FNF, and (ii) the Sponsor Group shall have the right to request the issuance and registration by the Company under the Securities Act in an initial Qualified Public Offering of newly issued shares of Common Stock (a "Company Qualified Public Offering"), by delivering a Registration Request; provided, however, that in no event will a Company Qualified Public Offering require the Company to issue a number of shares in excess of the 1.5 Cap or the 1.75 Cap as applicable. Subject to the carve back provisions of Section 2.1(e) hereof, at the election of either (i) FNF, or (ii) the Sponsor Group, FNF or the Sponsors may sell in such Company Qualified Public Offering the Registrable Shares owned by them, on a pro rata basis based upon the number of Registrable Shares held by each such Securityholder. 4 (c) Effecting the Registration. Subject to the restrictions set forth in Section 2.1(f), the Company will give prompt written notice of any such Registration Request (the "Registration Notice") to all other holders of Registrable Shares and will thereupon use its reasonable best efforts to effect the registration (a "Demand Registration") under the Securities Act on any form available to the Company of: (i) in the case of a Company Qualified Public Offering, the Registrable Shares required to be registered by the Company; (ii) the Registrable Shares requested to be registered by the Requesting Holders; and (iii) all other Registrable Shares of the same type and class which the Company has received a written request to register pursuant to Section 2.2(a) within 20 days after the Registration Notice is given and any securities of the Company proposed to be included in such registration by the Company for its own account (provided such securities shall be of the same class required to be registered under Section 2.1(a)). (d) Preservation of Demand Registration. A registration undertaken by the Company at the request of the Requesting Holder under Section 2.1(a) will not count as a Demand Registration: (i) if, pursuant to the Demand Right, the Requesting Holders are unable to register and sell at least 50% of the Registrable Shares requested to be included in such registration by them, unless such failure results from any act of, or failure to act by, any of the Requesting Holders; (ii) if the Requesting Holders withdraw their Registration Request prior to the time the Registration Statement therefor is declared effective and promptly reimburse the Company for all Registration Expenses incurred by the Company in connection with effecting such registration, such Registration Request shall not count as a Demand Registration) so long as this provision has not been previously utilized by the Sponsors within the immediately preceding 18 months; or (iii) if the Requesting Holders withdraw a Registration Request upon the determination of the board of directors of the Company to postpone the filing or effectiveness of a Registration Statement pursuant to Section 2.1(f). (e) Priority on Demand Registration. If the sole or managing underwriter of a Demand Registration advises the Company in writing that in its 5 reasonable opinion the number of Registrable Shares and other securities requested to be included exceeds the number of Registrable Shares and other securities which can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, the Company will include in such registration the Registrable Shares in the following priority: (i) first, in the event of a Company-Qualified Public Offering, the greatest number of securities of the Company proposed to be included in such registration by the Company for its own account, which in the opinion of such underwriters can be so sold; and (ii) second, after all securities that the Company proposes to register for its own account have been included, the greatest amount of Registrable Shares requested to be registered by the holders thereof which in the opinion of such underwriters can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, ratably among the holders of Registrable Shares (whether requested to be registered pursuant to Section 2.1 or 2.2) based on the respective amounts of Registrable Shares requested to be included and held by each such holder. (f) Restrictions on Demand Registrations. Except as otherwise provided in this Section 2.1(f), following the Company's initial Public Offering, the Company shall not be obligated to effect (i) more than two (2) Demand Registrations pursuant to a Demand Right exercised by the THL Holders under Section 2.1(a), and (ii) more than two (2) Demand Registrations pursuant to a Demand Right exercised by the TPG Holders under Section 2.1(a). No Securityholder may exercise a Demand Right under this Section 2.1 unless the reasonably anticipated gross proceeds of the resulting offering would exceed $75,000,000. Any Demand Registration requested must be for a firmly underwritten public offering of Registrable Shares to be managed by an underwriter or underwriters of recognized national standing selected by the Company and reasonably acceptable to the Requesting Holders. The Company may defer the filing (but not the preparation thereof) of a Registration Statement to effect a Demand Registration if, after a request is made, the Board of Directors of the Company has determined in good faith, after consultation with independent outside counsel, that the filing of a Registration Statement would require disclosure in the Registration Statement of material, non-public information in order to make the statements in the Registration Statement not misleading which the Company has a bona fide business purpose for preserving as confidential, and disclosure of which would have an adverse effect on the Company or its business. The Company may defer the registration under this paragraph (d) pursuant to the preceding sentence until the earlier of (A) the date upon which such material information is disclosed to the public or disclosure of which would no longer be material or materially detrimental or (B) 90 days after the Company first makes such good faith determination; 6 provided, however, that the Company shall not utilize this right to defer more than once in any twelve-month period. (g) Stock Splits. In connection with any Demand Registration pursuant to this Section 2.1, each party to this Agreement will vote, or cause to be voted, all securities of the Company over which it has the power to vote or direct the voting to effect any stock split which, in the opinion of the sole or managing underwriter, is necessary to facilitate the effectiveness of such Demand Registration. (h) Other Registration Rights. Except as provided in this Agreement, the Company shall not grant to any Persons the right to request the Company to register any equity securities of the Company or any incidental or "piggy-back" rights that are superior or pari pasu with respect to any equity security of the Company, or any securities convertible or exchangeable into or exercisable for such securities, without the prior written consent of the Sponsor Group. 2.2 Incidental Registration. (a) Requests for Incidental Registration. At any time the Company proposes to register for a Public Offering any shares of Registrable Securities under the Securities Act, including registrations pursuant to Section 2.1(a) and 2.1(b), whether or not for sale for its own account, the Company will give written notice to each holder of Registrable Shares at least 20 days prior to the initial filing of such Registration Statement with the SEC of its intent to file such Registration Statement and of such holder's rights under this Section 2.2. Upon the written request of any holder of Registrable Shares made within 10 days after any such notice is given (which request shall specify the Registrable Shares intended to be disposed of by such holder), the Company will effect the registration (an "Incidental Registration") under the Securities Act of all Registrable Shares which the Company has been so requested to register by the holders thereof; provided, however, that if, at any time after giving written notice of its intention to register any securities and prior to the effective date of the Registration Statement filed in connection with such Incidental Registration (each an "Incidental Registration Statement"), (i) the Company shall determine not to register such securities for its own account (provided such Company-initiated registration is not pursuant to Section 2.1(b) hereof) or to defer the registration of such securities in accordance with Section 2.1(f), or (ii) the Securityholder exercising a Demand Right shall determine for any reason not to register or to delay registration of such securities, the Company or such Securityholder, as the case may be, at its election, may give written notice of such determination to each holder of Registrable Shares and, thereupon, (a) in the case of a determination not to register, the Company shall be relieved of its obligation to register any Registrable Shares under this Section 2.2 or under Section 2.1 in connection with such particular registration (but not from its obligation to pay the expenses incurred in connection therewith) and (b) in the case of a determination to delay registration, the Company shall be permitted to delay registering any Registrable Shares under this Section 2.2 or under Section 2.1 during the period that the registration of such other securities is delayed. 7 (b) Priority on Incidental Registration. If the sole or managing underwriter of a registration advises the Company in writing that in its opinion the number of Registrable Shares and other securities requested to be included exceeds the number of Registrable Shares and other securities which can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, the Company will include in such registration the Registrable Shares and other securities of the Company in the following order of priority: (i) first, in the event of a Company-initiated registration, the greatest number of securities of the Company proposed to be included in such registration by the Company for its own account, which in the opinion of such underwriters can be so sold; and (ii) second, after all securities that the Company proposes to register for its own account have been included, the greatest amount of Registrable Shares requested to be registered by the holders thereof which in the opinion of such underwriters can be sold in such offering without adversely affecting the distribution of the securities being offered, the price that will be paid in such offering or the marketability thereof, ratably among the holders of Registrable Shares (whether requested to be registered pursuant to Section 2.1 or 2.2) based on the respective amounts of Registrable Shares requested to be included and held by each such holder. 2.3 Registration on Form S-3 (a) Request for Registration. After twelve (12) months following the initial Public Offering of the Company's securities pursuant to an effective registration statement filed by the Company under the Securities Act, if FNF or either of the Sponsors request that the Company file a registration statement on Form S-3 (or any successor form to Form S-3), or any similar short-form registration statement, for a Public Offering of Registrable Securities, the reasonably anticipated gross proceeds from the sale of such Registrable Securities would exceed $25,000,000, and the Company is a registrant entitled to use Form S-3 to register the Registrable Securities for such an offering, the Company shall (i) within ten (10) days of the receipt by the Company of such notice, give written notice of such proposed registration to all other Securityholders and (ii) as soon as practicable, shall use its commercially reasonable efforts to cause such Registrable Securities to be registered on such form for the offering and to cause such Registrable Securities to be qualified in such jurisdictions as the Securityholders may reasonably request together with all or such portion of the Registrable Securities of any Securityholders joining in such request as are specified in a written request received by the Company within twenty (20) days after receipt of such written notice from the Company. After the Company's first Public Offering, the Company will use its best efforts to qualify for and remain eligible to use Form S-3 registration or a similar short- 8 form registration. For the avoidance of doubt, a registration under this Section 2.3(a) shall not be considered to be a Demand Registration for any purpose. (b) Deferral of Filing. The Company may defer the filing (but not the preparation thereof) of a Registration Statement required by Section 2.3 if, after a request is made, the Board of Directors of the Company has determined in good faith after consultation with independent outside counsel, that the filing of a Registration Statement would require disclosure in the Registration Statement of material, non-public information in order to make the statements in the Registration Statement not misleading which the Company has a bona fide business purpose for preserving as confidential, and disclosure of which would have an adverse effect on the Company or its business. The Company may defer the registration under this paragraph (b) pursuant to the preceding sentence until the earlier of (A) the date upon which such material information is disclosed to the public or disclosure would no longer be material or materially detrimental or (B) 90 days after the Company first makes such good faith determination; provided, however, that the Company shall not utilize this right to defer more than once in any twelve-month period. 2.4 Holdback Agreements. Each Securityholder agrees that if requested in connection with any Public Offering made pursuant to this Agreement for which a Securityholder has registration rights pursuant to this Article 2 by the managing underwriter or underwriters of such underwritten offering, such Securityholder will enter into an agreement with the underwriters on customary terms regarding restrictions on the ability of the Securityholders, without the prior written consent of the managing underwriter, to sell their Registrable Shares during the period commencing on the date of the final prospectus to such Public Offering and ending on the date specified by the Company and the managing underwriter; provided, that (i) the date so specified will be no later than (A) 180 days after the date of such final prospectus in the case of an initial Public Offering, and (B) 90 days after the date of such final prospectus for any subsequent Public Offering, and will be the same for all Securityholders that enter into such agreements, and (ii) all executive officers, beneficial owners of more than 5% of the Company's capital stock and directors enter into such agreements. In order to enforce the foregoing covenant, the Company may impose stop-transfer instructions with respect to the Registrable Shares of each Securityholder (and the shares or securities of every other person subject to the foregoing restriction) until the end of such period. 2.5 Registration Procedures. In connection with the registration of any Registrable Shares, the Company shall effect such registrations to permit the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible: (a) Prepare and file with the SEC a Registration Statement or Registration Statements on a form available for the sale of the Registrable Shares by the holders thereof in accordance with the intended method of distribution thereof, and cause each such Registration Statement to become effective; 9 (b) (i) Except in the case of a Shelf Registration, prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be reasonably requested by either Sponsor (if such Sponsor is registering securities pursuant to such Registration Statement) or necessary to keep such Registration Statement continuously effective for a period ending on the earlier of (A) 90 days from the effective date and (B) such time as all of such securities have been disposed of in accordance with the intended method of disposition thereof; cause the related prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such prospectus as so supplemented; and (ii) in the case of a Shelf Registration, prepare and file with the SEC such amendments and supplements to such registration statement and the Prospectus used in connection therewith as may be necessary to keep such Securities Act with respect to the disposition of all Registrable Shares subject thereto for a period ending on the earlier of the date on which all the Registrable Shares subject thereto have been sold pursuant to such Registration Statement or two (2) years after effectiveness of the S-3. (c) Notify the Selling Securityholders of Registrable Shares promptly (but in any event within 2 business days), and confirm such notice in writing, (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any written comments by the SEC in respect of the Registration Statement or any request by the SEC or any other federal or state governmental authority for amendments or supplements to such Registration Statement or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary prospectus or the initiation or threat of any proceedings for such purpose, (iv) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of Registrable Shares the Company becomes aware that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 2.5(h) below cease to be true and correct in all material respects, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Shares for offer or sale in any jurisdiction, (vi) if the Company becomes aware of the happening of any event that makes any statement of a material fact made in such Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or that requires the making of any changes in such Registration Statement, prospectus or documents so that, in the case of such Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, 10 and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, or (vii) if for any other reason it shall be necessary to amend or supplement such Registration Statement in order to comply with the Securities Act. (d) Use every reasonable effort to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Shares for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment. (e) Promptly incorporate in a prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the managing underwriter or underwriters, if any, or the holders of a majority of the Registrable Shares of the class being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Shares; and make all required filings of such prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (f) Deliver to each Selling Securityholder of Registrable Shares and the underwriters, if any, without charge, as many copies of the prospectus or prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such prospectus and each amendment or supplement thereto by each of the Selling Securityholders of Registrable Shares and the underwriters or agents, if any, in connection with the offering and sale of the Registrable Shares covered by such prospectus and any amendment or supplement thereto. (g) Prior to any public offering of Registrable Shares, to use its best efforts to register or qualify, and cooperate with the Selling Securityholders of Registrable Shares, the underwriters, if any, the sales agents and their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares for offer and sale under the securities or "blue sky" laws of such jurisdictions within the United States as any Selling Securityholder or the managing underwriters reasonably request in writing; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject. (h) Upon the occurrence of any event contemplated by Section 2.5(c)(vi) above, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related prospectus or any document incorporated or deemed to be incorporated therein by 11 reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) Enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings and take all such other actions as are reasonably requested by the managing or sole underwriter in order to expedite or facilitate the registration or the disposition of such Registrable Shares, including obtaining for delivery to the Company and the underwriter or underwriters, if any, with copies to the holders of Registrable Securities included in such registration, a cold comfort letter from the Company's independent certified public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters as the managing underwriter or underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement. (j) Comply with all applicable rules and regulations of the SEC and make generally available to its Securityholders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Shares are sold to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effectiveness of a Registration Statement, which statements shall cover said 12-month periods. (k) (i) Use its reasonable best efforts to cause all such Registrable Shares covered by such registration statement to be listed on the principal securities exchange on which Common Stock is then listed (if any), if the listing of such Registrable Shares is then permitted under the rules of such exchange, or (ii) if no Common Stock is then so listed, use its commercially reasonable efforts to, either (as the Company may elect) (x) cause all such Registrable Shares to be listed on a national securities exchange or (y) secure designation of all such Registrable Shares as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 or, failing that, to secure NASDAQ authorization for such shares and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such shares with the National Association of Securities Dealers, Inc. ("NASD"). (l) Make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by the holders of a majority of the Registrable Shares of each class covered by the applicable Registration Statement, by any managing underwriter or underwriters participating in any disposition 12 to be effected pursuant to such Registration Statement and by any attorney, accountant or other agent retained by such sellers or any such managing underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available to discuss the business of the Company and to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement as shall be necessary to enable them to exercise their due diligence responsibility (subject to the entry by each party referred to in this clause (l) into customary confidentiality agreements in a form reasonably acceptable to the Company). (m) In the case of an underwritten offering, cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto; provided however this right may not be exercised pursuant to a registration in which the Company is not selling securities more than once in any 12 month period without the consent of such senior executive officers. The Company may require each holder of Registrable Shares as to which any registration is being effected to furnish to the Company such information regarding such holder and the distribution of such Registrable Shares as the Company may, from time to time, reasonably request in writing; provided that, such information shall be used only in connection with such registration. The Company may exclude from such registration the Registrable Shares of any holder who unreasonably fails to furnish such information promptly after receiving such request. Each holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.5(c)(ii), 2.5(c)(iv) or 2.5 (c)(v), such holder will forthwith discontinue disposition of such Registrable Shares covered by such Registration Statement or prospectus until such holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.5, or until it is advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any amendments or supplements thereto. In the case of a Shelf Registration, each holder of Registrable Shares, upon receipt of any notice (a "Suspension Notice") from the Company of the happening of any event of the kind described in Section 2.5(c) or any circumstance described in Section 2.1(f) or 2.3(b), shall forthwith discontinue disposition of the Registrable Shares pursuant to the Shelf Registration covering such Registrable Shares until (i) with respect to an event in Section 2.5(c), such holder's receipt of the copies of the writing (the "Advice") by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and (ii) with respect to a circumstance 13 described in Section 2.1(f) or 2.3(b), 90 days after receipt of the Suspension Notice. The Company shall not give a Suspension Notice until after the Shelf Registration has been declared effective and shall not give more than one Suspension Registration has been declared effective and shall not give more than one Suspension Notice during any period of twelve consecutive months and in no event shall the period from the date on which any holder receives a Suspension Notice to the date on which any holder receives either the Advice or copies of the supplemented or amended prospectus contemplated by Section 2.5(c) (the "Suspension Period") exceed 90 days. In the event that the Company shall give any Suspension Notice, the Company shall use its best efforts and take such actions as are reasonably necessary to render the Advice and end the Suspension Period as promptly as practicable. 2.6 Registration Expenses. Subject to Section 2.1(d)(i), all of the following fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company, whether or not any Registration Statement is filed or becomes effective, (i) all registration and filing fees (including, without limitation, (A) fees with respect to filings required to be made with the NASD in connection with an underwritten offering and (B) fees and expenses of compliance with state securities or "blue sky" laws), (ii) reasonable messenger, telephone and delivery expenses, (iii) fees and disbursements of counsel for the Company, (iv) fees and disbursements of all independent certified public accountants referred to in Section 2.5(h), (v) underwriters' fees and expenses (excluding discounts, commissions, or fees of underwriters, selling brokers, dealer managers or similar securities industry professionals relating to the distribution of the Registrable Shares), (vi) Securities Act liability insurance, if the Company so desires such insurance, (vii) internal expenses of the Company, (viii) the expense of any annual audit, (ix) the fees and expenses incurred in connection with the listing of the securities to be registered on any securities exchange, (x) the fees and expenses of any Person, including special experts, retained by the Company, and (xi) shall reimburse the holders of the Registrable Shares being registered in such registration for the reasonable fees and disbursements of not more than one counsel (together with appropriate local counsel) chosen by the holders of a majority in interest of the Registrable Shares held by the Requesting Holders and reasonably acceptable to the Company. 2.7 Indemnification; Contribution. (a) Indemnification by the Company. The Company shall, without limitation as to time, indemnify and hold harmless, to the full extent permitted by law, each holder of Registrable Shares, the officers, directors, agents, partners and employees of each of them, each Person who controls each such holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), the officers, directors, agents, partners and employees of each such controlling person and any financial or investment adviser (each, an "Indemnified Party"), to the fullest extent lawful, from and against any and all losses, claims, damages, liabilities, actions or proceedings (whether commenced or threatened), reasonable costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and reasonable 14 expenses (including reasonable expenses of investigation) (collectively, "Losses"), as incurred, arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus or form of prospectus or in any amendment or supplements thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except to the extent that the same arise out of or are based upon information furnished in writing to the Company by such Indemnified Party or the related holder of Registrable Shares expressly for use therein or (ii) any violation by the Company of any federal, state or common law rule or regulation applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration; provided, however, that the Company shall not be liable to any Person who participates as an underwriter in the offering or sale of Registrable Shares or any other Person, if any, who controls such underwriters within the meaning of the Securities Act to the extent that any such Losses arise out of or are based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) such Person failed to send or deliver a copy of the prospectus with or prior to the delivery of written confirmation of the sale by such Person to the Person asserting the claim from which such Losses arise, (ii) the prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, and (iii) the Company has complied with its obligations under Section 2.5(c). Each indemnity and reimbursement of costs and expenses shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party. (b) Indemnification by Holders. In connection with any Registration Statement in which a holder of Registrable Shares is participating, such holder, or an authorized officer of such holder, shall furnish to the Company in writing such information as the Company reasonably requests for use in connection with any Registration Statement or prospectus and agrees, severally and not jointly, to indemnify, to the full extent permitted by law, the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling persons, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, prospectus, or form of prospectus, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue or alleged untrue statement is contained in, or such omission or alleged omission is required to be contained in, any information so furnished in writing by such holder to the Company expressly for use in such Registration Statement or prospectus and that such statement or omission was relied upon by the Company in preparation of such Registration Statement, prospectus or form of prospectus; provided, however, that such holder of Registrable Shares shall not be liable in any such case to the extent that the holder has furnished in writing to the Company within a reasonable period of time prior to the filing of any such Registration Statement or prospectus or amendment 15 or supplement thereto information expressly for use in such Registration Statement or prospectus or any amendment or supplement thereto which corrected or made not misleading, information previously furnished to the Company, and the Company failed to include such information therein. In no event shall the liability of any Selling Securityholder of Registrable Shares hereunder be greater in amount than the dollar amount of the proceeds (net of payment of all expenses) received by such holder upon the sale of the Registrable Shares giving rise to such indemnification obligation. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified party. (c) Conduct of Indemnification Proceedings. If any Person shall be entitled to indemnity hereunder (an "indemnified party"), such indemnified party shall give prompt notice to the party or parties from which such indemnity is sought (the "indemnifying parties") of the commencement of any action, suit, proceeding or investigation or written threat thereof (a "Proceeding") with respect to which such indemnified party seeks indemnification or contribution pursuant hereto; provided, however, that the failure to so notify the indemnifying parties shall not relieve the indemnifying parties from any obligation or liability except to the extent that the indemnifying parties have been prejudiced by such failure. The indemnifying parties shall have the right, exercisable by giving written notice to an indemnified party promptly after the receipt of written notice from such indemnified party of such Proceeding, to assume, at the indemnifying parties' expense, the defense of any such Proceeding, with counsel reasonably satisfactory to such indemnified party; provided, however, that an indemnified party or parties (if more than one such indemnified party is named in any Proceeding) shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified party or parties unless: (i) the indemnifying parties agree to pay such fees and expenses; (ii) the indemnifying parties fail promptly to assume the defense of such Proceeding or fail to employ counsel reasonably satisfactory to such indemnified party or parties; or (iii) the named parties to any such Proceeding (including any impleaded parties) include both such indemnified party or parties and the indemnifying parties or an affiliate of the indemnifying parties or such indemnified parties, and there may be one or more defenses available to such indemnified party or parties that are different from or additional to those available to the indemnifying parties, in which case, if such indemnified party or parties notifies the indemnifying parties in writing that it elects to employ separate counsel at the expense of the indemnifying parties, the indemnifying parties shall not have the right to assume the defense thereof and such counsel shall be at the expense of the indemnifying parties, it being understood, however, that, unless there exists a conflict among indemnified parties, the indemnifying parties shall not, in connection with any one such Proceeding or separate but substantially similar or related Proceedings in the same jurisdiction, arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for such indemnified party or parties. Whether or not such defense is assumed by the indemnifying parties, such indemnifying parties or indemnified party or parties will not 16 be subject to any liability for any settlement made without its or their consent (but such consent will not be unreasonably withheld). The indemnifying parties shall not consent to entry of any judgment or enter into any settlement which (i) provides for other than monetary damages without the consent of the indemnified party or parties (which consent shall not be unreasonably withheld or delayed) or (ii) does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party or parties of a release, in form and substance satisfactory to the indemnified party or parties, from all liability in respect of such Proceeding for which such indemnified party would be entitled to indemnification hereunder. (d) Contribution. If the indemnification provided for in this Section 2.7 is unavailable to an indemnified party or is insufficient to hold such indemnified party harmless for any Losses in respect of which this Section 2.7 would otherwise apply by its terms, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall have an obligation to contribute to the amount paid or payable by such indemnified party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party, on the one hand, and indemnified party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by, such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses incurred by such party in connection with any Proceeding, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 2.7(a) or 2.7(b) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(d) were determined by pro-rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2.7(d). Notwithstanding the provisions of this Section 2.7(d), an indemnifying party that is a Selling Securityholder of Registrable Shares shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such indemnifying party exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reasons of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. 2.8 Rule 144. At all times after the Company effects its first Public Offering, the Company shall file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations promulgated thereunder, and will 17 take such further action as any holder of Registrable Shares may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 or 144A or Regulation S under the Securities Act. Upon the request of any holder of Registrable Shares, the Company shall deliver to such holder a written statement as to whether it has complied with such requirements. 2.9 Underwritten Registrations. (a) No holder of Registrable Shares may participate in any underwritten registration hereunder unless such holder (A) agrees to sell such holder's Registrable Shares on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (B) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements. (b) In the case of an underwritten offering requested by holders pursuant to Section 2.1 or 2.3, the price, underwriting discount and other financial terms for each class of Registrable Shares of the related underwriting agreement shall be determined by the Securityholders initially exercising such Demand Rights or rights under Section 2.3 and be acceptable to the Company (such consent not to be unreasonably withheld or delayed). In the case of any underwritten offering pursuant to Section 2.2, such price, discount and other terms shall be determined by the Company, subject to the right of the holders to withdraw their request to participate in the registration pursuant to Section 2.2(a) after being advised of such price, discount and other terms. 2.10 No Inconsistent Agreements. The Company has not and will not, enter into any agreement with respect to the Company's securities that is inconsistent with the rights granted to the holders of Registrable Shares in this Article 2 or otherwise conflicts with the provisions hereof. ARTICLE 3 TERMINATION 3.1 Termination. The provisions of this Agreement shall terminate when there shall no longer be any Registrable Shares outstanding. ARTICLE 4 MISCELLANEOUS 4.1 Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telex, by telecopier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows (or at such other address as may be substituted by notice given as herein provided): 18 If to the Company: Fidelity National Information Services, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers & Acquisitions Counsel Facsimile: (904)357-1026 If to FNF: Fidelity National Financial, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: Gregory S. Lane, Senior Vice President - Mergers & Acquisitions Counsel Facsimile: (904)357-1026 If to a Sponsor: Thomas H. Lee Partners, L.P. 100 Federal Street Boston, MA 02110 Attention: Thomas Hagerty and Seth Lawry Telephone: (617) 227-1050 Facsimile: (617) 227-3514 Texas Pacific Group 301 Commerce Street Suite 3300 Fort Worth, TX 76102 Attention: Richard A. Ekleberry, Esq. Telephone: (817) 871-4000 Facsimile: (817) 871-4088 with copies to: Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra, Esq. Marilyn French, Esq. Facsimile: (617) 772-8333 Cleary Gottlieb Steen & Hamilton LLP 19 One Liberty Plaza New York, NY 10006 Attention: David Leinwand, Esq. Facsimile: (212) 225-3999 If to any other Securityholder, at its address listed on Annex A hereof. Any notice or communication hereunder shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if sent via facsimile; one business day following the day sent by overnight courier (with written confirmation of receipt); and three (3) calendar days after mailing if sent by registered or certified mail (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Failure to mail a notice or communication to a Securityholder or any defect in it shall not affect its sufficiency with respect to other Securityholders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it. 4.2 Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Each of the parties agrees that all actions, suits or proceedings arising out of or based upon this Agreement or the subject matter hereof shall be brought and maintained exclusively in the federal and state courts of the State of New York. Each of the parties hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of the federal and state courts in the State of New York for the purpose of any action, suit or proceeding arising out of or based upon this Agreement or the subject matter hereof and (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that it is immune from extraterritorial injunctive relief or other injunctive relief, that its property is exempt or immune from attachment or execution, that any such action, suit or proceeding may not be brought or maintained in one of the above-named courts, that any such action, suit or proceeding brought or maintained in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred to any court other than one of the above-named courts, should be stayed by virtue of the pendency of any other action, suit or proceeding in any court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by any of the above-named courts. Each of the parties hereto hereby consents to service of process in any such suit, action or proceeding in any manner permitted by the laws of the State of New York, agrees that service of process by registered or certified mail, return receipt requested, at the address specified in or pursuant to Section 11 is reasonably calculated to give actual notice and waives and agrees not to assert by way of motion, as a defense or otherwise, in any such action, suit 20 or proceeding any claim that service of process made in accordance with Section 11 does not constitute good and sufficient service of process. The provisions of this Section 8(b) shall not restrict the ability of any party to enforce in any court any judgment obtained in a federal or state court of the State of New York. 4.3 Successors and Assigns. Each Securityholder may assign its rights hereunder to any purchaser or transferee of Registrable Shares; provided, however, that such purchaser or transferee shall, as a condition to the effectiveness of such assignment, be required to execute a counterpart to this Agreement, whereupon such purchaser or transferee shall have the benefits of, and shall be subject to the restrictions contained in this Agreement as if such purchaser or transferee was originally included in the definition of Securityholder herein and had originally been a party hereto. 4.4 Duplicate Originals. All parties may sign any number of copies of this Agreement. Each signed copy shall be an original, but all of them together shall represent the same agreement. 4.5 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions shall not in any way be affected or impaired thereby. 4.6 No Waivers; Amendments. (a) No failure or delay on the part of the Company or any Securityholder in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Company or any Securityholder at law or in equity or otherwise. (b) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by (i) the Company, (ii) FNF, and (iii) the Sponsor Group. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 21 IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights' Agreement on the day and year first above written. COMPANY: Fidelity National Information Services, Inc. By: _____________________________ Name: Title: SECURITYHOLDERS: Fidelity National Financial, Inc. By: _____________________________ Name: Title: THOMAS H. LEE EQUITY FUND V, L.P. By: THL Equity Advisors V, LLC, its general partners By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: ___________________ Name: Title: Managing Director THOMAS H. LEE PARALLEL FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: ____________________________ Name: Title: Managing Director COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT THOMAS H. LEE CAYMAN FUND V, L.P. By: THL Equity Advisors V, LLC, its general partner By: Thomas H. Lee Partners, L.P., its sole member By: Thomas H. Lee Advisors LLC, its general partner By: ______________________________ Name: Title: Managing Director THOMAS H. LEE INVESTORS LIMITED PARTNERSHIP By: THL Investment Management Corp., its general partner By: ____________________________ Name: Thomas H. Lee Title: Chief Executive Officer 23 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY I LLC By: Putnam Investments Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By: _______________________________________ Name: Title: PUTNAM INVESTMENTS EMPLOYEES' SECURITIES COMPANY II LLC By: Putnam Investments Holdings, LLC, its managing member By: Putnam Investments, LLC, its managing member By: _______________________________________ Name: Title: PUTNAM INVESTMENTS HOLDINGS, LLC By: Putnam Investments, LLC, its managing member By: ________________________________________ Name: Title: 24 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT TPG PARTNERS III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: ________________________________________ Name: Title: TPG PARALLEL III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: ________________________________________ Name: Title: TPG INVESTORS III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: ________________________________________ Name: Title: FOF PARTNERS III, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: ________________________________________ Name: Title: 25 COUNTERPART SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT FOF PARTNERS III-B, L.P. By: TPG GenPar III, L.P. By: TPG Advisors III, Inc. By: ________________________________________ Name: Title: TPG DUTCH PARALLEL III, C.V. By: TPG GenPar Dutch, L.L.C. By: TPG Genpar III, L.P. By: TPG Advisors III, Inc. By: ________________________________________ Name: Title: TPG PARTNERS IV, L.P. By: TPG GenPar IV, L.P. By: TPG Advisors IV, Inc. By: ________________________________________ Name: Title: 26 Annex I Securityholders [INSERT NAMES AND ADDRESSES OF SECURITYHOLDERS] EX-99.4 6 a04306exv99w4.txt EXHIBIT 99.4 EXHIBIT 99.4 FIDELITY NATIONAL INFORMATION SERVICES, INC. 2005 STOCK INCENTIVE PLAN EFFECTIVE AS OF [_________________] TABLE OF CONTENTS
PAGE NO. -------- SECTION 1. PURPOSE........................................................ 1 SECTION 2. ADMINISTRATION................................................. 1 a. Committees............................................ 1 b. Authority of the Board of Directors................... 1 SECTION 3. ELIGIBILITY.................................................... 1 SECTION 4. STOCK SUBJECT TO PLAN.......................................... 2 a. Basic Limitation...................................... 2 b. Additional Shares..................................... 2 SECTION 5. AWARDS......................................................... 2 a. Types of Awards....................................... 2 b. Award Agreements...................................... 2 c. No Rights as a Stockholder............................ 3 SECTION 6. OPTIONS........................................................ 3 a. Option Agreement...................................... 3 b. Special ISO Rules..................................... 3 SECTION 7. STOCK AWARDS................................................... 4 a. Generally............................................. 4 b. No Purchase Price Necessary........................... 4 SECTION 8. PAYMENT FOR SHARES............................................. 4 a. General Rule.......................................... 4 b. Surrender of Shares................................... 4 c. Services Rendered..................................... 5 d. Promissory Note....................................... 5 e. Net Exercise.......................................... 5 f. Exercise/Sale......................................... 5 g. Exercise of Discretion................................ 5 SECTION 9. TERMINATION OF SERVICE......................................... 5 a. Termination of Service................................ 5 b. Leave of Absence...................................... 6 SECTION 10. ADJUSTMENT OF SHARES........................................... 6 a. General............................................... 6 b. Mergers and Consolidations............................ 6 SECTION 11. SECURITIES LAW REQUIREMENTS.................................... 7 a. Shares Not Registered................................. 7 b. California Participants............................... 7
SECTION 12. GENERAL TERMS.................................................. 7 a. Nontransferability of Awards.......................... 7 b. Restrictions on Transfer of Shares.................... 7 c. Withholding Requirements.............................. 8 d. No Retention Rights................................... 8 e. Unfunded Plan......................................... 8 SECTION 13. DURATION AND AMENDMENTS........................................ 8 a. Term of the Plan...................................... 8 b. Right to Amend or Terminate the Plan.................. 8 c. Effect of Amendment or Termination.................... 9 d. Modification, Extension and Assumption of Awards...... 9 SECTION 14. DEFINITIONS.................................................... 9 a. "Affiliate" .......................................... 9 b. "Award" .............................................. 9 c. "Board of Directors".................................. 9 d. "Cause"............................................... 9 e. "Change in Control"................................... 9 f. "Code"................................................ 10 g. "Committee"........................................... 10 h. "Company"............................................. 10 i. "Disability".......................................... 10 j. "Fair Market Value"................................... 10 k. "Initial Investors"................................... 10 l. "Initial Public Offering"............................. 10 m. "ISO"................................................. 11 n. "Nonstatutory Option"................................. 11 o. "Option".............................................. 11 p. "Parent".............................................. 11 q. "Person".............................................. 11 r. "Plan"................................................ 11 s. "Recapitalization".................................... 11 t. "Service"............................................. 11 u. "Share"............................................... 11 v. "Stock Award"......................................... 11 w. "Subsidiary".......................................... 11 x. "Ten Percent Stockholders" ........................... 11 y. "THL"................................................. 11 z. "TPG"................................................. 12 SECTION 15. MISCELLANEOUS.................................................. 12 a. Choice of Law......................................... 12 b. Execution............................................. 12 APPENDIX I CALIFORNIA SECURITIES LAW REQUIREMENTS.......................... 1
FIDELITY NATIONAL INFORMATION SERVICES, INC. 2005 STOCK INCENTIVE PLAN SECTION 1. PURPOSE. The purpose of the Plan is to attract and retain the best available personnel, to provide additional incentive to persons who provide services to the Company and its Subsidiaries, and to promote the success of the Company's business. Unless the context otherwise requires, capitalized terms used herein are defined in Section 14. SECTION 2. ADMINISTRATION. a. COMMITTEES. The Plan shall be administered by the Board of Directors or, at its election, by one or more committees consisting of one or more members who have been appointed by the Board of Directors. Each committee shall have such authority and be responsible for such functions as may be delegated to it by the Board of Directors, and any reference to the Board of Directors in the Plan shall be construed as a reference to the committee with respect to functions delegated to it. If no committee has been appointed, the entire Board of Directors shall administer the Plan. b. AUTHORITY OF THE BOARD OF DIRECTORS. The Board of Directors shall have full authority and sole discretion to take any actions it deems necessary or advisable for the administration and operation of the Plan, including, without limitation, the right to construe and interpret the provisions of the Plan or any Award, to provide for any omission in the Plan, to resolve any ambiguity or conflict under the Plan or any Award, to accelerate vesting of or otherwise waive any requirements applicable to any Award, to extend the term or any period of exercisability of any Award, to modify the purchase price or exercise price under any Award, to establish terms or conditions applicable to any Award and to review any decisions or actions made or taken by a Committee. All decisions, interpretations and other actions of the Board of Directors or, in the absence of any action by the Board of Directors, any Committee shall be final and binding on all participants and other persons deriving their rights from a participant. Notwithstanding anything to the contrary herein, no action taken by the Board of Directors shall adversely affect in any material respect the rights granted to any participant under any outstanding Award without the participant's written consent. SECTION 3. ELIGIBILITY The Board of Directors is authorized to grant Awards to directors, employees and consultants of the Company or any Subsidiary. Persons who have been granted Awards shall be participants in the Plan with respect to such Awards. SECTION 4. STOCK SUBJECT TO PLAN. a. BASIC LIMITATION. Subject to the following provisions of this Section and Section 10, the maximum number of shares of common stock, $.0001 par value per share, of the Company that may be issued pursuant to Awards under the Plan is [________] Shares(1). b. ADDITIONAL SHARES. In the event that any outstanding Award expires, is cancelled or otherwise terminated, any shares allocable to the unexercised or unvested portion of such Award shall again be available for the purposes of the Plan. In the event that Shares issued under the Plan are reacquired by the Company pursuant to any forfeiture provision, right of repurchase, right of first offer or withholding requirements, such Shares shall again be available for the purposes of the Plan. In the event a participant pays for any Award through the delivery of previously acquired Shares, the number of Shares available shall be increased by the number of Shares delivered by the participant. SECTION 5. AWARDS. a. TYPES OF AWARDS. The Board of Directors may, in its sole discretion, grant Options or Stock Awards. The Company shall make Awards directly or cause one or more of its Subsidiaries to make Awards; provided, however, that the Company shall be responsible for causing any such Subsidiary to comply with the terms of any Award and the Plan. b. AWARD AGREEMENTS. Each Award made under the Plan shall be evidenced by a written agreement between the participant and the Company, and no Award shall be valid without any such agreement. An Award shall be subject to all applicable terms and conditions of the Plan and to any other terms and conditions which the Board of Directors in its sole discretion deems appropriate for inclusion in the Award agreement provided such terms and conditions are not inconsistent with the Plan. Accordingly, in the event of any conflict between the provisions of the Plan and any such agreement, the provisions of the Plan shall prevail. Awards made to California participants shall also be subject to the applicable requirements set forth in Appendix I. Each agreement evidencing an Award shall provide, in addition to any terms and conditions required to be provided in such agreement pursuant to any other provision of this Plan, the following terms: (i) Number of Shares. The number of Shares subject to the Award, if any, which number shall be subject to adjustment in accordance with Section 10 of the Plan. (ii) Price. Where applicable, each agreement shall designate the price, if any, to acquire any Shares underlying the Award, which price shall be payable in a form described in Section 8 of the Plan and subject to adjustment pursuant to Section 10 of the Plan. (iii) Vesting. Each agreement shall specify the dates and events on which all or any installment of the Award shall be vested and nonforfeitable. Such provisions, - ------------------- (1) Pool to equal 7.5% of the Company's common equity on a fully diluted basis. 2 may include, without limitation, a provision that Awards vest upon a Change in Control. c. NO RIGHTS AS A STOCKHOLDER. A participant, or a transferee of a participant, shall have no rights as a stockholder with respect to any Shares covered by an Award until Shares are actually issued in the name of such person (or if Shares will be held in street name, to a broker who will hold such Shares on behalf of such person). SECTION 6. OPTIONS. a. OPTION AGREEMENT. The Board of Directors, may in its sole discretion, grant Options. Each agreement evidencing an Award of Options shall contain the following information, which shall be determined by the Board of Directors, in its sole discretion: (i) ISO/Nonstatutory Option. Each agreement shall designate an Option as either an ISO or a Nonstatutory Option. (ii) Exercisability. Each agreement shall specify the dates and events when all or any installment of the Option becomes exercisable. (iii) Term. Each agreement shall state the term of each Option (including the circumstances under which such Option will expire prior to the stated term thereof), which shall not exceed ten (10) years from the date of grant or such shorter term as may be required by Section 6(b)(iii) below for Ten Percent Stockholders (as defined below). b. SPECIAL ISO RULES. The following rules apply to ISO grants in addition to any other rule that may apply under this Plan: (i) ISO Participants. ISOs may only be granted to employees of the Company, a Parent or a Subsidiary. (ii) Exercise Price. The exercise price of an ISO shall not be less than one hundred percent (100%) of the Fair Market Value of a Share on the date of grant or such higher price as may be required by Section 6(b)(iii) below for Ten Percent Stockholders. (iii) Ten Percent Stockholders. An individual who owns more than ten percent (10%) of the total combined voting power of all classes of outstanding stock of the Company, its Parent or any of its Subsidiaries ("Ten Percent Stockholders") shall not be eligible for designation as a participant under an ISO unless (A) the exercise price is at least one hundred ten percent (110%) of the Fair Market Value of a Share on the date of grant and (B) the ISO is not exercisable after the expiration of five (5) years from the date of grant. In determining stock ownership for purposes hereof, the attribution rules of Section 424(d) of the Code shall apply. 3 (iv) Dollar Limitation. The aggregate Fair Market Value of Shares (determined as of the respective date or dates of grant) for which one or more Options granted to any participant under the Plan (or any other option plan of the Company or any Parent or Subsidiary) may for the first time become exercisable as ISOs during any one (1) calendar year shall not exceed the sum of One Hundred Thousand Dollars ($100,000). To the extent a participant holds two (2) or more Options which become exercisable for the first time in the same calendar year, such Options shall qualify as ISOs on the basis of the order in which such Options were granted. (v) Failure to Qualify. If all or a portion of an Option granted as an ISO fails (or later ceases to) qualify as an ISO, such Option or portion thereof shall be treated as a Nonstatutory Option. SECTION 7. STOCK AWARDS. a. GENERALLY. The Board of Directors may, in its sole discretion, make Stock Awards by granting or selling Shares under the Plan. A Stock Award may be made subject to a substantial risk of forfeiture or such other terms and conditions, as determined by the Board of Directors in its sole discretion. Payment in Shares of all or a portion of any bonus under any other arrangement may be treated by the Board of Directors as an Award of Shares under the Plan. A Stock Award shall not be deemed made until accepted by a participant in a manner described by the Board of Directors at the time of grant and shall thereafter be deemed to be actually issued in the name of such person (or if Shares will be held in street name, to a broker who will hold such Shares on behalf of such person) subject to any restriction on such Stock Award. b. NO PURCHASE PRICE NECESSARY. In lieu of a purchase price, a Stock Award may be made in consideration of services previously rendered by a participant to the Company or a Subsidiary or its Subsidiaries. SECTION 8. PAYMENT FOR SHARES. a. GENERAL RULE. The exercise price of an Option shall be payable in cash or personal check at the time when such Shares are purchased, except as otherwise provided in this Section 8. b. SURRENDER OF SHARES. At the sole discretion of the Board of Directors, all or any part of the purchase price or exercise price of any Award and any applicable withholding requirements may be paid by surrendering, or attesting to the ownership of, Shares that are already owned by the participant. Such Shares shall be surrendered to the Company in good form for transfer and shall be valued at their Fair Market Value on the date when the Award is exercised or purchased. [THE PARTICIPANT SHALL NOT SURRENDER, OR ATTEST TO THE OWNERSHIP OF, SHARES IN PAYMENT OF ANY PORTION OF THE EXERCISE PRICE (OR WITHHOLDING) OF AN OPTION IF SUCH ACTION WOULD CAUSE THE COMPANY OR ANY SUBSIDIARY TO RECOGNIZE A COMPENSATION EXPENSE (OR ADDITIONAL COMPENSATION EXPENSE) WITH RESPECT TO THE APPLICABLE OPTION FOR FINANCIAL REPORTING PURPOSES, UNLESS THE BOARD OF DIRECTORS CONSENTS THERETO.](2) - ------------------- (2) This phrase may not be necessary if accounting treatment not relevant to company. 4 c. SERVICES RENDERED. At the sole discretion of the Board of Directors, Shares may be awarded under the Plan in consideration of services rendered to the Company, a Parent or a Subsidiary prior to or after the Award. d. PROMISSORY NOTE. At the sole discretion of the Board of Directors, all or a portion of the purchase price or exercise price of an Award and any applicable withholding requirements may be paid with a full-recourse promissory note. However, the par value of the Shares, if newly issued, shall be paid in cash. The Shares shall be pledged as security for payment of the principal amount of the promissory note and interest thereon. The interest rate payable under the terms of the promissory note shall not be less than the minimum rate (if any) required to avoid the imputation of additional interest under the Code. Subject to the foregoing, the Board of Directors (at its sole discretion) shall specify the term, interest rate, amortization requirements (if any) and other provisions of such note. e. NET EXERCISE. At the sole discretion of the Board of Directors, payment of all or any portion of the exercise price under any Option granted under the Plan and any applicable withholding requirements may be made by reducing the number of Shares otherwise deliverable pursuant to the Option by the number of such Shares having a Fair Market Value equal to the exercise price. f. EXERCISE/SALE. At the sole discretion of the Board of Directors on or after an Initial Public Offering, payment may be made in whole or in part by the delivery (on a form prescribed by the Company) of an irrevocable direction to a securities broker approved by the Company to sell Shares acquired upon the exercise of the Option or purchase of an Award and to deliver all or part of the sales proceeds to the Company in payment of all or part of the purchase price and any withholding requirements. g. EXERCISE OF DISCRETION. Should the Board of Directors exercise its sole discretion to permit the participant to pay the exercise price of an Option in whole or in part in accordance with Subsections (b) through (f) above, it shall not be bound to permit such alternative method of payment for the remainder of any such Option or with respect to any other Option or participant under the Plan. SECTION 9. TERMINATION OF SERVICE. a. TERMINATION OF SERVICE. If a participant's Service terminates for any reason, then unless the Award agreement provides otherwise: (i) Options. Outstanding Options shall expire on the earlier of: (A) the expiration of their term, (B) twelve (12) months following termination of the participant's Service as a result of death, Disability or Retirement, (C) twelve (12) months following termination of the participant's Service without Cause, or (D) the date of termination of the participant's Service if such termination is for Cause or if such termination is voluntary by the participant. However, a participant (or in the case of the participant's death or Disability, the participant's representative) may exercise all or a part of the participant's Options at any time before the expiration of such Options under the preceding sentence only to the extent that such Options had become exercisable for vested Shares (in accordance with the terms of such Option or otherwise under the Plan) on or before the date the 5 participant's Service terminates. The balance of the Options (which are not exercisable and vested on the date participant's Service terminates) shall lapse when the participant's Service terminates. If an ISO is not exercised within three (3) months after a participant's employment terminates, then unless such participant's employment termination is due to his death or Disability, the ISO shall be treated as a Nonstatutory Option; and (ii) Stock Awards. The terms of the applicable Stock Award agreement shall govern the terms and conditions of a participant's Award with respect to termination of service. b. LEAVE OF ABSENCE. For purposes of this Section, Service shall be deemed to continue while a participant is a bona fide leave of absence, if such leave is approved by the Company or applicable Subsidiary in writing or if continued crediting of service for this purpose is expressly required by the terms of such leave or by applicable law (as determined by the Board of Directors). SECTION 10. ADJUSTMENT OF SHARES. a. GENERAL. If there shall be a Recapitalization, an adjustment shall be made to the number of shares authorized by Section 4 hereof and each outstanding Award such that each such Award shall thereafter be exercisable or payable, as the case may be, in such securities, cash and/or other property as would have been received in respect of Shares subject to such Award had such Award been exercised and/or settled in full immediately prior to such Recapitalization and such an adjustment shall be made successively each time any such change shall occur. In addition, in the event of any Recapitalization, to prevent dilution or enlargement of participants' rights under the Plan, the Board of Directors shall, and will have the authority to adjust, in a fair and equitable manner, the number and kind of Shares that may be issued under the Plan, the number and kind of Shares subject to outstanding Awards, and the purchase price applicable to outstanding Awards. Should the vesting of any Award be conditioned upon the Company's attainment of performance conditions, the Board of Directors may make such adjustments to the terms and conditions of such Awards and the criteria therein to recognize unusual and nonrecurring events affecting the Company or in response to changes in applicable laws, regulations or accounting principles. Notwithstanding the foregoing, the Board of Directors shall not without a participant's consent make any adjustment to an ISO that does not comply with the rules of Section 424(a) of the Code or would otherwise cause the ISO to fail to qualify as an ISO for purposes of Section 422 of the Code. b. MERGERS AND CONSOLIDATIONS. If the Company is to be consolidated with or acquired by another entity in a merger, sale of all or substantially all of the Company's assets or otherwise, or in the event of any other transaction that constitutes a Change in Control, outstanding Awards shall be subject to the agreement of merger or consolidation. Such agreement, without the participants' consent, may provide for: (i) The continuation or assumption of such outstanding Awards under the Plan by the Company (if it is the surviving corporation) or by the surviving corporation or its parent; 6 (ii) The substitution by the surviving corporation or its parent of stock awards with substantially the same terms for such outstanding Awards; (iii) The acceleration of the vesting of or right to exercise such outstanding Awards immediately prior to or as of the date of the merger or consolidation, and the expiration of such outstanding Awards to the extent not vested, or not timely exercised or purchased by the date of the merger or consolidation or other date thereafter designated by the Board of Directors; or (iv) The cancellation of all or any portion of such outstanding Awards by a cash payment of the excess, if any, of the fair market value of the Shares subject to such outstanding Awards or portion thereof being canceled over the purchase price with respect to such Awards or portion thereof being canceled. SECTION 11. SECURITIES LAW REQUIREMENTS. a. SHARES NOT REGISTERED. Shares shall not be issued under the Plan unless the issuance and delivery of such Shares comply with (or are exempt from) all applicable requirements of law, including (without limitation) the Securities Act of 1933, as amended, the rules and regulations promulgated thereunder, state securities laws and regulations, and the regulations of any stock exchange or other securities market on which the Company's securities may then be traded. Except as may be provided in an Award agreement, the Company shall not be obligated to file any registration statement under any applicable securities laws to permit the purchase or issuance of any Shares under the Plan, and accordingly any certificates for Shares may have an appropriate legend or statement of applicable restrictions endorsed thereon. Each participant and any person deriving its rights from any participant shall, as a condition to the exercise or purchase of an Award under the Plan, deliver to the Company an agreement or certificate containing such representations, warranties and covenants as the Company may deem necessary or appropriate to ensure that the issuance of Shares is not required to be registered under any applicable securities laws. b. CALIFORNIA PARTICIPANTS. If an Award shall be granted to a participant based in California, then such Award shall meet the additional requirements set forth in Appendix I. 7 SECTION 12. GENERAL TERMS. a. NONTRANSFERABILITY OF AWARDS. No Award (other than vested, unrestricted Stock Awards) may be transferred, assigned, pledged or hypothecated by any participant during the participant's lifetime, whether by operation of law or otherwise, or be made subject to execution, attachment or similar process, except by beneficiary designation, will or the laws of descent and distribution. Subject to the limitations contained in this Section, an Option or other right to acquire Shares under the Plan, may be exercised during the lifetime of the participant only by the participant or by the participant's guardian or legal representative. Such Option or other right shall not be transferable and shall be exercisable only by the participant to whom such right was granted, except in the case of a transfer by the participant to its affiliate with the prior written consent of the Board of Directors in its sole discretion. b. RESTRICTIONS ON TRANSFER OF SHARES. Any Shares issued under the Plan shall be subject to such vesting and special forfeiture conditions, repurchase rights, rights of first offer and other transfer restrictions as the Board of Directors may determine. Such restrictions shall be set forth in the applicable Award agreement, and shall apply in addition to any restrictions that may apply to holders of Shares generally. c. WITHHOLDING REQUIREMENTS. As a condition to the receipt of Shares pursuant to the purchase, receipt or vesting of Shares pursuant to an Award, a participant shall make such arrangements as the Board of Directors may require for the satisfaction of any federal, state, local or foreign withholding obligations that may arise in connection with such receipt or purchase. The participant shall also make such arrangements as the Board of Directors may require for the satisfaction of any federal, state, local or foreign withholding obligations that may arise in connection with the disposition of Shares acquired pursuant to the exercise of an Option. d. NO RETENTION RIGHTS. Nothing in the Plan or in any Award granted under the Plan shall confer upon a participant any right to continue in Service for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Company (or any Parent or Subsidiary employing or retaining the participant) or of the participant, which rights are hereby expressly reserved by each, to terminate his or her Service at any time and for any reason, with or without Cause. e. UNFUNDED PLAN. Participants shall have no right, title or interest whatsoever in or to any investments which the Company may make to aid it in meeting its obligations under the Plan. Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be construed to create a trust of any kind, nor a fiduciary relationship between the Company and any participant, beneficiary, legal representative or any other person. To the extent that any person acquires a right to receive payments from the Company under the Plan, such right shall be no greater than the rights of an unsecured general creditor of the Company. All payments to be made hereunder shall be paid from the general funds of the Company and no special or separate fund shall be established and no segregation of assets shall be made to assure payment of such amounts. The Plan is not intended to be subject to the Employee Retirement Income Security Act of 1974, as amended. 8 SECTION 13. DURATION AND AMENDMENTS. a. TERM OF THE PLAN. The Plan, as set forth herein, shall become effective on the date of its adoption by the Board of Directors, subject to the approval of the majority of the Company's stockholders. If a majority of the stockholders fail to approve the Plan within 12 months of its adoption by the Board of Directors, any Awards that have already been made shall be rescinded, and no additional Awards shall be made thereafter under the Plan. The Plan shall terminate automatically on the day preceding the tenth anniversary of its adoption by the Board of Directors unless earlier terminated pursuant to Subsection (b) below. b. RIGHT TO AMEND OR TERMINATE THE PLAN. The Board of Directors may amend, suspend or terminate the Plan at any time and for any reason; provided, however, that any amendment of the Plan which increases the maximum number of Shares issuable to any person or available for issuance under the Plan in the aggregate (except as provided in Section 10), changes the legal entity authorized to make Awards under this Plan from the Company (or its successor) to any other legal entity or which materially changes the class of persons who are eligible for the grant of ISOs, shall be subject to the approval of the Company's stockholders. Stockholder approval shall not be required for any other amendment of the Plan. c. EFFECT OF AMENDMENT OR TERMINATION. Any amendment of the Plan shall not adversely affect in any material respect any participant's rights under any Award previously made or granted under the Plan without the participant's consent. No Shares shall be issued or sold under the Plan after the termination thereof, except pursuant to an Award granted prior to such termination. The termination of the Plan shall not affect any Awards outstanding on the termination date. d. MODIFICATION, EXTENSION AND ASSUMPTION OF AWARDS. Within the limitations of the Plan, the Board of Directors may modify, extend or assume outstanding Awards or may provide for the cancellation of outstanding Awards in return for the grant of new Awards for the same or a different number of Shares and at the same or a different price. The foregoing notwithstanding, no modification of an Awards shall, without the consent of the participant, materially impair the participant's rights or increase the participant's obligations under such Award or impair the economic value of any such Award. SECTION 14. DEFINITIONS. a. "AFFILIATE" of any particular Person means any other Person controlling, controlled by or under common control with such particular Person or, with respect to any individual, such individual's spouse and descendants (whether natural or adopted) and any trust, partnership, limited liability company or similar vehicle established and maintained solely for the benefit of (or the sole members or partners of which are) such individual, such individual's spouse and/or such individual's descendants. b. "AWARD" shall mean an Option or a Stock Award. C. "BOARD OF DIRECTORS" shall mean the Board of Directors of the Company, as constituted from time to time. 9 d. "CAUSE" shall mean with respect to a participant "Cause" as defined in any employment agreement between the participant and the Company (or, if applicable, the Subsidiary employing the participant) or if the participant is not a party to an employment agreement or "cause" is not defined therein, the following unless another meaning is specifically provided by the Board of Directors or in the participant's Award agreement: (i) Any conviction or plea of guilty or nolo contendere to a felony, (ii) Any willful misconduct or gross negligence, or (iii) Any willful breach of any written policy or any confidential or proprietary information, non-compete or non-solicitation covenant for the benefit of the Company or any of its Affiliates. e. "CHANGE IN CONTROL" shall mean the consummation of a transaction, whether in a single transaction or in a series of related transactions that are consummated contemporaneously (or consummated pursuant to contemporaneous agreements), with any other party or parties, other than an Affiliate of any of Fidelity National Financial, Inc. ("FNF"), Thomas H. Lee Equity Fund V, L.P. or TPG Partners IV, L.P. on an arm's-length basis, pursuant to which (a) a party or group (as defined under Rule 13d under the Securities Exchange Act of 1934, as amended) who is not a stockholder of the Company on [________](3), acquires, directly or indirectly (whether by merger, stock purchase, recapitalization, reorganization, redemption, issuance of capital stock or otherwise), more than 50% of the voting stock of the Company, (b) such party or parties, directly or indirectly, acquire assets constituting all or substantially all of the assets of the Company and its subsidiaries on a consolidated basis, or (c) prior to an initial public offering of the Company common stock pursuant to an offering registered under the Securities Act, at the time at which any party or group (as defined under Rule 13d under the Securities Exchange Act of 1934, as amended), other than (i) THL, (ii) TPG or (iii) FNF, or their respective Affiliates, has the ability to elect, directly or indirectly, a majority of the Board of Directors. A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company's incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company's securities immediately before such transaction. f. "CODE" shall mean the Internal Revenue Code of 1986, as amended. g. "COMMITTEE" shall mean a committee of the Board of Directors, as described in Section 2(a). h. "COMPANY" shall mean Fidelity National Information Services, Inc., a Delaware corporation. i. "DISABILITY" shall mean with respect to a participant, (i) "disability" as defined in any employment agreement between the between the participant and the Company (or, if applicable, - ------------------- (3) Closing Date 10 the Subsidiary employing the participant) or (ii) if the participant is not a party to an employment agreement or "disability" is not defined therein, the participant's inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment, as determined by the Board of Directors in its sole discretion, unless another meaning is specifically provided in the participant's Award agreement; provided, however, that in either case and solely for purposes of determining whether an Option continues to qualify as an ISO, Disability shall have the meaning described in Section 22(e)(3) of the Code. j. "FAIR MARKET VALUE" shall mean the fair market value of a Share, as determined by the Board of Directors in good faith. Such determination shall be conclusive and binding on all persons. k. "INITIAL INVESTORS" shall mean THL and TPG, collectively. l. "INITIAL PUBLIC OFFERING" shall mean a firm commitment underwritten public offering of Shares or other event the result of which is that Shares are tradable on the New York Stock Exchange, American Stock Exchange, NASDAQ National Market or similar market system. m. "ISO" shall mean an incentive stock option described in Section 422(b) of the Code. n. "NONSTATUTORY OPTION" shall mean a stock option not described in Sections 422(b) of the Code. o. "OPTION" shall mean an ISO or Nonstatutory Option granted under the Plan and entitling the holder to purchase Shares. p. "PARENT" shall mean any corporation (other than the Company) in an unbroken chain of corporations ending with the Company, if each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date. q. "PERSON" shall be construed broadly and shall include, without limitation, an individual, a partnership, an investment fund, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof. r. "PLAN" shall mean this Fidelity National Information Services, Inc. Stock Incentive Plan. s. "RECAPITALIZATION" shall mean an event or series of events affecting the capital structure of the Company such as a stock split, reverse stock split, stock dividend, extraordinary cash dividend, distribution, recapitalization, combination or reclassification of the Company's securities. t. "SERVICE" shall mean service as an employee, director or consultant. 11 u. "SHARE" shall mean one share of common stock of the Company, with a par value of $.0001 per Share. v. "STOCK AWARD" shall have the meaning described in Section 7(a). w. "SUBSIDIARY" shall mean any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date. x. "TEN PERCENT STOCKHOLDERS" shall have them meaning described in Section 6(b)(iii). y. "THL" means collectively, Thomas H. Lee Equity Fund V, L.P., a Delaware limited partnership, Thomas H. Lee Parallel Fund V, L.P., Thomas H. Lee Cayman Fund V, L.P., 1997 Thomas H. Lee Nominee Trust, Thomas H. Lee Investors Limited Partnership, Putnam Investments Holdings, LLC, Putnam Investments Employees' Securities Company I LLC, and Putnam Investments Employees' Securities Company II, LLC. z. "TPG" means collectively, TPG Partners III, L.P., TPG Parallel III, L.P., TPG Investors III, L.P., FOF Partners III, L.P., FOF Partners III-B, L.P., TPG Dutch Parallel III, C.V., and TPG Partners IV, L.P.. SECTION 15. MISCELLANEOUS. a. CHOICE OF LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, as such laws are applied to contracts entered into and performed in such State. b. EXECUTION. To record the adoption of the Plan by the Board of Directors, the Company has caused its authorized officer to execute the same. FIDELITY NATIONAL INFORMATION SERVICES, INC. By: /s/ _________________ Title: President 12 APPENDIX I CALIFORNIA SECURITIES LAW REQUIREMENTS The terms of this Appendix I apply only to Awards that would be subject to Section 25110 of the California Corporations Code or any successor law but for the exemption contained in Section 25102(o) of the California Corporation Code (or any successor law). For purposes of determining the applicability of the California securities law requirements contained in this Subsection, all Awards shall be deemed made in the State in which the participant is principally employed by the Company or any Parent or Subsidiary (as determined by the employer's records) on the date of grant or issuance of the Award. Except as modified by the provisions of this Appendix I, all the other relevant provisions of the Plan shall be applicable to such Awards. (i) Number of Securities. At no time shall the total number of securities issuable upon exercise of all outstanding Options and the total number of Shares provided for under this or any stock bonus or similar plan or agreement of the Company exceed the applicable percentage calculated in accordance with Title 10 California Code of Regulations, Chapter 3, Subchapter 2, Article 4, Subarticle 4, Section 260.140.45., (ii) Exercise Price. The Exercise Price of an Option shall not be less than eighty-five percent (85%) of the Fair Market Value on the date of grant (one hundred ten percent (110%) of the Fair Market Value on the date of grant for an Option granted to Ten Percent Stockholders). (ii) Purchase Price. The purchase price of an Award of Shares shall not be less than eighty-five percent (85%) of the Fair Market Value on the date of issuance (one hundred percent (100%) of the Fair Market Value on the date of issuance for an Award granted to Ten Percent Stockholders). (iv) Vesting and Exercisability. Except in the case of an Option granted to a Consultant, officer of the Company (or any Parent or Subsidiary), or any member of the Board of Directors, each Option shall become exercisable and vested with respect to at least twenty percent (20%) of the total number of Shares subject to such Option each year, beginning no later than one (1) year after the date of grant. (v)Repurchase Rights. Except in the case of an Award granted or issued to a Consultant, officer of the Company (or any Parent or Subsidiary), or any member of the Board of Directors, any rights of the Company to repurchase Shares acquired under the Plan applicable to a participant whose Service terminates: (A) Shall be exercised by the Company (if at all) within ninety (90) days after the date the participant's Service terminates (or for Shares upon the exercise of an Award after Service terminates, within ninety (90) days after the date of such exercise) and shall terminate on the date of an Initial Public Offering, and (B) Shall lapse at the rate of at least twenty percent (20%) of the Shares subject to such Award per year (regardless of the portion of the Award exercised or exercisable), with the initial lapse to occur no later than one (1) year after the date of grant, to the extent the repurchase right permits repurchase at less than 13 Fair Market Value. Any repurchase right shall not be exercisable for less than the original purchase price paid by a participant. (v) Limited Transferability Rights. (A) A Nonstatutory Option or other right to acquire shares (other than an ISO) may, to the extent permitted by the Board of Directors, be assigned in whole or in part during the participant's lifetime (1) as a gift to one or more members of the participant's immediate family or (2) by instrument to an inter vivos or testamentary trust in which such Award is to be passed to beneficiaries upon the death of the trustor (settlor). The terms applicable to the assigned portion shall be the same as those in effect for the Award immediately prior to such assignment and shall be set forth in such documents issued to the assignee as the Board of Directors may deem appropriate. (B) Except as provided in Subsection (A) above, an Award may not be assigned or transferred other than by will or by the laws of descent and distribution following the participant's death. (vi) Financial Reports. The Company shall deliver a financial statement at least annually to each participant holding Awards or Shares issued under the Plan, unless such participant is a key employee whose duties in connection with the Company assure such individual access to equivalent information. A- EX-99.5 7 a04306exv99w5.txt EXHIBIT 99.5 EXHIBIT 99.5 MANAGEMENT AGREEMENT This Management Agreement (this "AGREEMENT") is entered into as of the ___ day of ________, 2005, by and between Fidelity National Information Services, Inc., a Delaware corporation (the "COMPANY") and TPG GenPar IV, L.P., a Delaware limited partnership (the "SPONSOR"). WHEREAS, certain affiliates of the Sponsor (the "INVESTORS"), together with other co-investors, have acquired shares of the capital stock of the Company (the "INVESTMENT") pursuant to that certain Stock Purchase Agreement, by and among the Company, the Investors and the persons listed on the signatures pages thereto (the "PURCHASE AGREEMENT"). WHEREAS, the Sponsor has staff specifically skilled in corporate finance, strategic corporate planning, and other management skills and advisory services. WHEREAS, in connection with the Investment and related transactions, the Sponsor provided advice and analysis including advice with respect to debt facilities and arrangements, and related arrangements and other matters (collectively, "ADVISORY SERVICES"). WHEREAS, the Company will require the Sponsor's special skills and management advisory services in connection with its business operations and execution of its strategic plan. WHEREAS, the Sponsor is willing to provide such skills and services to the Company. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Services. The Sponsor hereby agrees that if, during the term of this Agreement (the "TERM"), the Company reasonably and specifically requests that the Sponsor provide the services set forth below and, in the case of the services described in subsections (a) and (b), the Sponsor agrees to provide such services, the Sponsor or one of its affiliates will provide the following services to the Company and its subsidiaries: (a) advice in connection with the negotiation and consummation of agreements, contracts, documents and instruments related to the Company's finances or relationships with banks or other financial institutions; (b) advice with respect to the development and implementation of strategies for improving the operating, marketing and financial performance of the Company, and other senior management matters related to the business, administration and policies of the Company; and (c) review and comment on the descriptive memorandums of potential acquisition opportunities for the Company. The Sponsor shall have no obligation to the Company as to the method or timing of services rendered hereunder (provided that services shall be rendered in a reasonably timely manner), and the Company shall not have any right to dictate or direct the details of the performance of services by the Sponsor rendered hereunder. The parties hereto expressly acknowledge that the services to be performed hereunder by the Sponsor shall not include investment banking or other financial advisory services rendered by Sponsor or its affiliates to the Company in connection with any specific acquisition, divestiture, refinancing or recapitalization by the Company or any of its subsidiaries for which the Sponsor may be entitled to receive additional compensation by mutual agreement of the Company or its subsidiary and the Sponsor. This Agreement shall in no way prohibit the Sponsor or any of its affiliates or any of their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents or representatives from engaging in other activities, whether or not competitive with any business of the Company of any of its affiliates. 2. Payment of Fees. In exchange for the Advisory Services and the Sponsor's agreement to provide the services described in clauses (a), (b) or (c) of Section 1, the Company hereby agrees to pay to the Sponsor (or its designee(s)) the following fees: (a) a transaction fee in connection with the transactions contemplated in the Purchase Agreement payable at the Closing (as defined in the Purchase Agreement) of $12,500,000; and (b) an annual management fee (the "FEE"), payable in advance in semi-annual installments beginning at the Closing (as described below) and thereafter on the first business day of January and July of each year in an amount per year equal to $1,250,000. Each payment made pursuant to this Section 2 shall be paid by wire transfer of immediately available funds to the accounts specified on Exhibit A attached hereto, or to such other account(s) as the Sponsor may specify in writing to the Company. The first installment of the Fee shall be payable at the Closing. All references to "per annum" or "annual" herein refer to the fiscal year of the Company. The initial payment of the annual Fee (for the period from the Closing Date to July 1, 2005) shall be prorated to reflect the portion of the current fiscal year which elapses prior to the Closing. 3. Term. This Agreement shall be effective as of the date hereof and shall continue in full force and effect until the earlier of (i) five (5) years from the date hereof, or (ii) the consummation of a public offering of equity securities of the Company. Upon any termination of this Agreement, each of (a) the obligations of the Company under Section 4 below, (b) any and all owed and unpaid obligations of the Company under Section 2 above, and (c) the provisions of Section 7, shall survive any termination of this Agreement to the maximum extent permitted under applicable law. 4. Expenses; Indemnification. (a) Expenses. In addition to the fees set forth in Section 2 hereof, the Company agrees to pay on demand all costs and expenses incurred by the Sponsor and its affiliates or any of them in connection with this Agreement and in connection with performing services hereunder including 2 but not limited to air travel charged at charter equivalent rates, legal, consulting, out of pocket and other expenses, including but not limited to the fees and disbursements of Cleary, Gottlieb, Steen & Hamilton, counsel to the Sponsor, and any other consultants or advisors retained by the Sponsor or its counsel arising in connection therewith, and the performance of services hereunder (including, without limitation, fees and expenses of independent professionals, research, transportation and per diem costs). (b) Indemnity and Liability. The Company will indemnify and hold harmless each of the Sponsor, its affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives (each such Person being an "Indemnified Party") from and against any and all losses, claims, damages and liabilities, whether joint or several, expenses of any nature (including reasonable attorneys' fees and disbursements), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative, in which an Indemnified Party was involved or may be involved, or threatened to be involved, as a party or otherwise (the "Liabilities"), related to, arising out of or in connection with the advisory and consulting services contemplated by this Agreement or the engagement of the Sponsors pursuant to, and the performance by the Sponsors of the services contemplated by, this Agreement, and any other action taken by an Indemnified Party on behalf of the Company, whether or not pending or threatened, and any other action taken by an Indemnified Party on behalf of the Company, whether or not resulting in any liability and whether or not such action, claim, suit, investigation or proceeding is initiated or brought by the Company. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys' fees and expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto, provided that, subject to the following sentence, the Company shall be entitled to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment. Any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense, and in any action, claim, suit, investigation or proceeding in which both the Company and/or one or more of its subsidiaries, on the one hand, and an Indemnified Party, on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to employ one separate counsel at the expense of the Company and to control its own defense of such action, claim, suit, investigation or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict or potential conflict exists between the Company, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable. The Company agrees that it will not, without the prior written consent of the applicable Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, suit, investigation, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been threatened to be made a party thereto) unless such settlement, compromise or consent includes an unconditional release of the applicable Indemnified Party and each other Indemnified Party from all liability arising or that may arise out of such claim, suit, investigation, action or proceeding. Provided the Company is not in breach of its indemnification obligations hereunder, no Indemnified Party shall settle or compromise any claim subject to indemnification hereunder without the consent of the Company. The Company will not be liable under the foregoing indemnification provision with respect to any 3 Indemnified Party, to the extent that any loss, claim, damage, liability, cost or expense is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted primarily from the gross negligence or willful misconduct by an Indemnified Party. If an Indemnified Party is reimbursed hereunder for any expenses, such reimbursement of expenses shall be refunded to the extent it is finally judicially determined that the Liabilities in question resulted primarily from the gross negligence or willful misconduct of such Indemnified Party. As used herein, the term "Person" shall be construed in the broadest sense and means and includes a natural person, a partnership, a corporation, an association, a joint stock company, a limited liability company, a trust, a joint venture, an unincorporated organization and any other entity and any federal, state, municipal, foreign or other government, governmental department, commission, board, bureau, agency or instrumentality, or any private or public court or tribunal. The Company agrees that if any indemnification sought by any Indemnified Party pursuant to this Section 4 is unavailable for any reason or is insufficient to hold the Indemnified Party harmless against any Liabilities referred to herein, then the Company shall contribute to the Liabilities for which such indemnification is held unavailable or insufficient in such proportion as is appropriate to reflect the relative benefits received (or anticipated to be received) by the Company, on the one hand, and the Indemnified Party, on the other hand, in connection with the transactions which gave rise to such Liabilities or, if such allocation is not permitted by applicable law, not only such relative benefits but also the relative faults of the Company, on the one hand, and the Indemnified Party, on the other hand, as well as any other equitable considerations, subject to the limitation that in any event the aggregate contribution by the Indemnified Parties to all Liabilities with respect to which contribution is available hereunder shall not exceed the fees actually received by the Sponsor in connection with the transaction which gave rise to such Liabilities (excluding any amounts paid as reimbursement of expenses). 5. Assignment, etc. Except as provided below, no party hereto shall have the right to assign this Agreement. The Sponsor acknowledges that its services under this Agreement are unique. Accordingly, any purported assignment by the Sponsor (other than as specifically permitted below) shall be void. Notwithstanding the foregoing, the Sponsor may assign all or part of its rights and obligations hereunder to any affiliate of the Sponsor which provides services similar to those called for by this Agreement. 6. Amendments and Waivers. No amendment or waiver of any term, provision or condition of this Agreement shall be effective, unless in writing and executed by the Sponsor and the Company. No waiver on any one occasion shall extend to or effect or be construed as a waiver of any right or remedy on any future occasion. No course of dealing of any Person nor any delay or omission in exercising any right or remedy shall constitute an amendment of this Agreement or a waiver of any right or remedy of any party hereto. 7. Miscellaneous. (a) Choice of Law. This Agreement shall be governed by and construed in accordance with the domestic substantive laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction. 4 (b) Consent to Jurisdiction. Each of the parties agrees that all actions, suits or proceedings arising out of or based upon this Agreement or the subject matter hereof shall be brought and maintained exclusively in the federal and state courts of the State of New York. Each of the parties hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of the federal and state courts in the State of New York for the purpose of any action, suit or proceeding arising out of or based upon this Agreement or the subject matter hereof and (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that it is immune from extraterritorial injunctive relief or other injunctive relief, that its property is exempt or immune from attachment or execution, that any such action, suit or proceeding may not be brought or maintained in one of the above-named courts, that any such action, suit or proceeding brought or maintained in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred to any court other than one of the above-named courts, should be stayed by virtue of the pendency of any other action, suit or proceeding in any court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by any of the above-named courts. Each of the parties hereto hereby consents to service of process in any such suit, action or proceeding in any manner permitted by the laws of the State of New York, agrees that service of process by registered or certified mail, return receipt requested, at the address specified in or pursuant to Section 11 is reasonably calculated to give actual notice and waives and agrees not to assert by way of motion, as a defense or otherwise, in any such action, suit or proceeding any claim that service of process made in accordance with Section 11 does not constitute good and sufficient service of process. The provisions of this Section 8(b) shall not restrict the ability of any party to enforce in any court any judgment obtained in a federal or state court of the State of New York. (c) Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT, OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. Each of the parties hereto acknowledges that it has been informed by each other party that the provisions of this Section 7(c) constitute a material inducement upon which such party is relying and will rely in entering into this Agreement and the transactions contemplated hereby. Any of the parties hereto may file an original counterpart or a copy of this Agreement with any court as written evidence of the consent of each of the parties hereto to the waiver of its right to trial by jury. 8. Independent Contractor. The parties agree and understand that the Sponsor is and shall act as an independent contractor of the Company in the performance of its duties hereunder. The Sponsor is not, and in the performance of its duties hereunder will not hold itself out as, an employee, agent or partner of the Company. 9. Merger/Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior communication or agreement with respect thereto. 5 10. Notice. All notices, demands, and communications of any kind which any party may require or desire to serve upon any other party under this Agreement shall be in writing and shall be served upon such other party and such other party's copied persons as specified below by personal delivery to the address set forth for it below or to such other address as such party shall have specified by notice to each other party or by mailing a copy thereof by certified or registered mail, or by Federal Express or any other reputable overnight courier service, postage prepaid, with return receipt requested, addressed to such party and copied persons at such addresses. In the case of service by personal delivery, it shall be deemed complete on the first business day after the date of actual delivery to such address. In case of service by mail or by overnight courier, it shall be deemed complete, whether or not received, on the third day after the date of mailing as shown by the registered or certified mail receipt or courier service receipt. Notwithstanding the foregoing, notice to any party or copied Person of change of address shall be deemed complete only upon actual receipt by an officer or agent of such party or copied person. If to the Company: Fidelity National Information Services, Inc. 601 Riverside Avenue, 12th Floor Jacksonville, FL 32204 Attention: General Counsel Facsimile: (904)357-1005 If to the Sponsor: TPG GenPar IV, L.P. c/o Texas Pacific Group 345 California Street, Suite 3300 San Francisco, CA 94104 Attention: Jonathan Coslet and Marshall Haines Facsimile: (415)743-1501 with a copy to: Cleary, Gottlieb, Steen & Hamilton One Liberty Plaza New York, NY 10006 Attention : Michael Ryan Fax : (212) 225-3999 11. Severability. If in any judicial or arbitral proceedings a court or arbitrator shall refuse to enforce any provision of this Agreement, then such unenforceable provision shall be deemed eliminated from this Agreement for the purpose of such proceedings to the extent necessary to permit the remaining provisions to be enforced. To the full extent, however, that the provisions of any applicable law may be waived, they are hereby waived to the end that this Agreement be, deemed to be a valid and binding agreement enforceable in accordance with its terms, and in the event that any provision hereof shall be found to be invalid or unenforceable, such provision shall 6 be construed by limiting it so as to be valid and enforceable to the maximum extent consistent with and possible under applicable law. 12. Counterparts. This Agreement may be executed in any number of counterparts and by each of the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement. 13. Headings. All descriptive headings in this Agreement are inserted for convenience only and shall be disregarded in construing or applying any provision of this Agreement. 14. Prevailing Party. If any legal action or other proceedings is brought for a breach of this Agreement or any of the warranties herein, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in bringing such action or proceeding, in addition to any other relief to which such party may be entitled. * * * * * 7 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf as an instrument under seal as of the date first above written by its officer or representative thereunto duly authorized. FIDELITY NATIONAL INFORMATION SERVICES, INC. By: __________________________ Name: Title: TPG GenPar IV, L.P. By: TPG Advisors IV, Inc., its general partner By: __________________________ Name: Richard A. Ekleberry Title: Vice President 8 EXHIBIT A Wire Instructions [TPG Wire instructions] 9 EX-99.6 8 a04306exv99w6.txt EXHIBIT 99.6 EXHIBIT 99.6 MANAGEMENT AGREEMENT This Management Agreement (this "AGREEMENT") is entered into as of the ___ day of ________, 2005, by and between Fidelity National Information Services, Inc., a Delaware corporation (the "COMPANY") and THL Managers V, LLC, a Delaware limited liability company (the "SPONSOR"). WHEREAS, certain affiliates of the Sponsor (the "INVESTORS"), together with other co-investors, have acquired shares of the capital stock of the Company (the "INVESTMENT") pursuant to that certain Stock Purchase Agreement, by and among the Company, the Investors and the persons listed on the signatures pages thereto (the "PURCHASE AGREEMENT"). WHEREAS, the Sponsor has staff specifically skilled in corporate finance, strategic corporate planning, and other management skills and advisory services. WHEREAS, in connection with the Investment and related transactions, the Sponsor provided advice and analysis including advice with respect to debt facilities and arrangements, and related arrangements and other matters (collectively, "ADVISORY SERVICES"). WHEREAS, the Company will require the Sponsor's special skills and management advisory services in connection with its business operations and execution of its strategic plan. WHEREAS, the Sponsor is willing to provide such skills and services to the Company. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Services. The Sponsor hereby agrees that if, during the term of this Agreement (the "TERM"), the Company reasonably and specifically requests that the Sponsor provide the services set forth below and, in the case of the services described in subsections (a) and (b), the Sponsor agrees to provide such services, the Sponsor or one of its affiliates will provide the following services to the Company and its subsidiaries: (a) advice in connection with the negotiation and consummation of agreements, contracts, documents and instruments related to the Company's finances or relationships with banks or other financial institutions; (b) advice with respect to the development and implementation of strategies for improving the operating, marketing and financial performance of the Company, and other senior management matters related to the business, administration and policies of the Company; and (c) review and comment on the descriptive memorandums of potential acquisition opportunities for the Company. The Sponsor shall have no obligation to the Company as to the method or timing of services rendered hereunder (provided that services shall be rendered in a reasonably timely manner), and the Company shall not have any right to dictate or direct the details of the performance of services by the Sponsor rendered hereunder. The parties hereto expressly acknowledge that the services to be performed hereunder by the Sponsor shall not include investment banking or other financial advisory services rendered by Sponsor or its affiliates to the Company in connection with any specific acquisition, divestiture, refinancing or recapitalization by the Company or any of its subsidiaries for which the Sponsor may be entitled to receive additional compensation by mutual agreement of the Company or its subsidiary and the Sponsor. This Agreement shall in no way prohibit the Sponsor or any of its affiliates or any of their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents or representatives from engaging in other activities, whether or not competitive with any business of the Company of any of its affiliates. 2. Payment of Fees. In exchange for the Advisory Services and the Sponsor's agreement to provide the services described in clauses (a), (b) or (c) of Section 1, the Company hereby agrees to pay to the Sponsor (or its designee(s)) the following fees: (a) a transaction fee in connection with the transactions contemplated in the Purchase Agreement payable at the Closing (as defined in the Purchase Agreement) of $12,500,000; and (b) an annual management fee (the "FEE"), payable in advance in semi-annual installments beginning at the Closing (as described below) and thereafter on the first business day of January and July of each year in an amount per year equal to $1,250,000. Each payment made pursuant to this Section 2 shall be paid by wire transfer of immediately available funds to the accounts specified on Exhibit A attached hereto, or to such other account(s) as the Sponsor may specify in writing to the Company. The first installment of the Fee shall be payable at the Closing. All references to "per annum" or "annual" herein refer to the fiscal year of the Company. The initial payment of the annual Fee (for the period from the Closing Date to July 1, 2005) shall be prorated to reflect the portion of the current fiscal year which elapses prior to the Closing. 3. Term. This Agreement shall be effective as of the date hereof and shall continue in full force and effect until the earlier of (i) five (5) years from the date hereof, or (ii) the consummation of a public offering of equity securities of the Company. Upon any termination of this Agreement, each of (a) the obligations of the Company under Section 4 below, (b) any and all owed and unpaid obligations of the Company under Section 2 above, and (c) the provisions of Section 7, shall survive any termination of this Agreement to the maximum extent permitted under applicable law. 4. Expenses; Indemnification. (a) Expenses. In addition to the fees set forth in Section 2 hereof, the Company agrees to pay on demand all costs and expenses incurred by the Sponsor and its affiliates or any of them in connection with this Agreement and in connection with performing services hereunder including but not limited to air travel charged at charter equivalent rates, legal, consulting, out of pocket and other expenses, including but not limited to the fees and disbursements of Weil, Gotshal & Manges LLP, counsel to the Sponsor, and any other consultants or advisors retained by the Sponsor or its 2 counsel arising in connection therewith, and the performance of services hereunder (including, without limitation, fees and expenses of independent professionals, research, transportation and per diem costs). (b) Indemnity and Liability. The Company will indemnify and hold harmless each of the Sponsor, its affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives (each such Person being an "INDEMNIFIED PARTY") from and against any and all losses, claims, damages and liabilities, whether joint or several, expenses of any nature (including reasonable attorneys' fees and disbursements), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative, in which an Indemnified Party was involved or may be involved, or threatened to be involved, as a party or otherwise (the "LIABILITIES"), related to, arising out of or in connection with the advisory and consulting services contemplated by this Agreement or the engagement of the Sponsors pursuant to, and the performance by the Sponsors of the services contemplated by, this Agreement, and any other action taken by an Indemnified Party on behalf of the Company, whether or not pending or threatened, and any other action taken by an Indemnified Party on behalf of the Company, whether or not resulting in any liability and whether or not such action, claim, suit, investigation or proceeding is initiated or brought by the Company. The Company will reimburse any Indemnified Party for all reasonable costs and expenses (including reasonable attorneys' fees and expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action, claim, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any action or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto, provided that, subject to the following sentence, the Company shall be entitled to assume the defense thereof at its own expense, with counsel satisfactory to such Indemnified Party in its reasonable judgment. Any Indemnified Party may, at its own expense, retain separate counsel to participate in such defense, and in any action, claim, suit, investigation or proceeding in which both the Company and/or one or more of its subsidiaries, on the one hand, and an Indemnified Party, on the other hand, is, or is reasonably likely to become, a party, such Indemnified Party shall have the right to employ one separate counsel at the expense of the Company and to control its own defense of such action, claim, suit, investigation or proceeding if, in the reasonable opinion of counsel to such Indemnified Party, a conflict or potential conflict exists between the Company, on the one hand, and such Indemnified Party, on the other hand, that would make such separate representation advisable. The Company agrees that it will not, without the prior written consent of the applicable Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, suit, investigation, action or proceeding relating to the matters contemplated hereby (if any Indemnified Party is a party thereto or has been threatened to be made a party thereto) unless such settlement, compromise or consent includes an unconditional release of the applicable Indemnified Party and each other Indemnified Party from all liability arising or that may arise out of such claim, suit, investigation, action or proceeding. Provided the Company is not in breach of its indemnification obligations hereunder, no Indemnified Party shall settle or compromise any claim subject to indemnification hereunder without the consent of the Company. The Company will not be liable under the foregoing indemnification provision with respect to any Indemnified Party, to the extent that any loss, claim, damage, liability, cost or expense is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted primarily from the gross negligence or willful misconduct by an Indemnified Party. If an Indemnified Party is reimbursed hereunder for any expenses, such reimbursement of expenses shall 3 be refunded to the extent it is finally judicially determined that the Liabilities in question resulted primarily from the gross negligence or willful misconduct of such Indemnified Party. As used herein, the term "PERSON" shall be construed in the broadest sense and means and includes a natural person, a partnership, a corporation, an association, a joint stock company, a limited liability company, a trust, a joint venture, an unincorporated organization and any other entity and any federal, state, municipal, foreign or other government, governmental department, commission, board, bureau, agency or instrumentality, or any private or public court or tribunal. The Company agrees that if any indemnification sought by any Indemnified Party pursuant to this Section 4 is unavailable for any reason or is insufficient to hold the Indemnified Party harmless against any Liabilities referred to herein, then the Company shall contribute to the Liabilities for which such indemnification is held unavailable or insufficient in such proportion as is appropriate to reflect the relative benefits received (or anticipated to be received) by the Company, on the one hand, and the Indemnified Party, on the other hand, in connection with the transactions which gave rise to such Liabilities or, if such allocation is not permitted by applicable law, not only such relative benefits but also the relative faults of the Company, on the one hand, and the Indemnified Party, on the other hand, as well as any other equitable considerations, subject to the limitation that in any event the aggregate contribution by the Indemnified Parties to all Liabilities with respect to which contribution is available hereunder shall not exceed the fees actually received by the Sponsor in connection with the transaction which gave rise to such Liabilities (excluding any amounts paid as reimbursement of expenses). 5. Assignment, etc. Except as provided below, no party hereto shall have the right to assign this Agreement. The Sponsor acknowledges that its services under this Agreement are unique. Accordingly, any purported assignment by the Sponsor (other than as specifically permitted below) shall be void. Notwithstanding the foregoing, the Sponsor may assign all or part of its rights and obligations hereunder to any affiliate of the Sponsor which provides services similar to those called for by this Agreement. 6. Amendments and Waivers. No amendment or waiver of any term, provision or condition of this Agreement shall be effective, unless in writing and executed by the Sponsor and the Company. No waiver on any one occasion shall extend to or effect or be construed as a waiver of any right or remedy on any future occasion. No course of dealing of any Person nor any delay or omission in exercising any right or remedy shall constitute an amendment of this Agreement or a waiver of any right or remedy of any party hereto. 7. Miscellaneous. (a) Choice of Law. This Agreement shall be governed by and construed in accordance with the domestic substantive laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction. (b) Consent to Jurisdiction. Each of the parties agrees that all actions, suits or proceedings arising out of or based upon this Agreement or the subject matter hereof shall be brought and maintained exclusively in the federal and state courts of the State of New York. Each of the parties hereto by execution hereof (i) hereby irrevocably submits to the jurisdiction of the federal and state courts in the State of New York for the purpose of any action, suit or proceeding 4 arising out of or based upon this Agreement or the subject matter hereof and (ii) hereby waives to the extent not prohibited by applicable law, and agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that it is immune from extraterritorial injunctive relief or other injunctive relief, that its property is exempt or immune from attachment or execution, that any such action, suit or proceeding may not be brought or maintained in one of the above-named courts, that any such action, suit or proceeding brought or maintained in one of the above-named courts should be dismissed on grounds of forum non conveniens, should be transferred to any court other than one of the above-named courts, should be stayed by virtue of the pendency of any other action, suit or proceeding in any court other than one of the above-named courts, or that this Agreement or the subject matter hereof may not be enforced in or by any of the above-named courts. Each of the parties hereto hereby consents to service of process in any such suit, action or proceeding in any manner permitted by the laws of the State of New York, agrees that service of process by registered or certified mail, return receipt requested, at the address specified in or pursuant to Section 11 is reasonably calculated to give actual notice and waives and agrees not to assert by way of motion, as a defense or otherwise, in any such action, suit or proceeding any claim that service of process made in accordance with Section 11 does not constitute good and sufficient service of process. The provisions of this Section 8(b) shall not restrict the ability of any party to enforce in any court any judgment obtained in a federal or state court of the State of New York. (c) Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT, OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT HEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. Each of the parties hereto acknowledges that it has been informed by each other party that the provisions of this Section 7(c) constitute a material inducement upon which such party is relying and will rely in entering into this Agreement and the transactions contemplated hereby. Any of the parties hereto may file an original counterpart or a copy of this Agreement with any court as written evidence of the consent of each of the parties hereto to the waiver of its right to trial by jury. 8. Independent Contractor. The parties agree and understand that the Sponsor is and shall act as an independent contractor of the Company in the performance of its duties hereunder. The Sponsor is not, and in the performance of its duties hereunder will not hold itself out as, an employee, agent or partner of the Company. 9. Merger/Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior communication or agreement with respect thereto. 10. Notice. All notices, demands, and communications of any kind which any party may require or desire to serve upon any other party under this Agreement shall be in writing and shall be served upon such other party and such other party's copied persons as specified below by personal delivery to the address set forth for it below or to such other address as such party shall have specified by notice to each other party or by mailing a copy thereof by certified or registered mail, 5 or by Federal Express or any other reputable overnight courier service, postage prepaid, with return receipt requested, addressed to such party and copied persons at such addresses. In the case of service by personal delivery, it shall be deemed complete on the first business day after the date of actual delivery to such address. In case of service by mail or by overnight courier, it shall be deemed complete, whether or not received, on the third day after the date of mailing as shown by the registered or certified mail receipt or courier service receipt. Notwithstanding the foregoing, notice to any party or copied Person of change of address shall be deemed complete only upon actual receipt by an officer or agent of such party or copied person. If to the Company: Fidelity National Information Services, Inc. 601 Riverside Avenue, 12th Floor Jacksonville, FL 32204 Attention: General Counsel Facsimile: (904)357-1005 If to the Sponsor: THL Managers V, LLC c/o Thomas H. Lee Partners, L.P. 100 Federal Street Boston, MA 02110 Attention: Thomas Hagerty and Seth Lawry Facsimile: (617) 227-3514 with a copy to: Weil, Gotshal & Manges LLP 100 Federal Street Boston, Massachusetts 02110 Attention: James Westra and Marilyn French Facsimile: (617) 772-8333 11. Severability. If in any judicial or arbitral proceedings a court or arbitrator shall refuse to enforce any provision of this Agreement, then such unenforceable provision shall be deemed eliminated from this Agreement for the purpose of such proceedings to the extent necessary to permit the remaining provisions to be enforced. To the full extent, however, that the provisions of any applicable law may be waived, they are hereby waived to the end that this Agreement be, deemed to be a valid and binding agreement enforceable in accordance with its terms, and in the event that any provision hereof shall be found to be invalid or unenforceable, such provision shall be construed by limiting it so as to be valid and enforceable to the maximum extent consistent with and possible under applicable law. 12. Counterparts. This Agreement may be executed in any number of counterparts and by each of the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement. 6 13. Headings. All descriptive headings in this Agreement are inserted for convenience only and shall be disregarded in construing or applying any provision of this Agreement. 14. Prevailing Party. If any legal action or other proceedings is brought for a breach of this Agreement or any of the warranties herein, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in bringing such action or proceeding, in addition to any other relief to which such party may be entitled. * * * * * 7 IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf as an instrument under seal as of the date first above written by its officer or representative thereunto duly authorized. FIDELITY NATIONAL INFORMATION SERVICES, INC. By: __________________________ Name: Title: THL MANAGERS V, LLC By: Thomas H. Lee Partners, L.P., its Managing Member By: THL Equity Advisors V, L.P., its General Partner By: _________________________ Name: Anthony J. DiNovi Title: Managing Director 8 EXHIBIT A Wire Instructions THL Managers V, LLC FleetBoston 100 Federal Street Boston, MA ABA #011000138 Account Name: THL Managers V, LLC Account #270-07242 9 EX-99.7 9 a04306exv99w7.txt EXHIBIT 99.7 EXHIBIT 99.7 DIRECTOR INDEMNIFICATION AGREEMENT This Director Indemnification Agreement (the "Agreement") made and entered into this ____ day of ___________, 200__ by and between Fidelity National Information Services, Inc., a Delaware corporation (the "Company"), and _____________ (the "Indemnitee"). WHEREAS, it is essential that the Company be able to retain and attract as directors the most capable persons available; WHEREAS, the Company's Bylaws permit it to enter into indemnification arrangements and agreements; WHEREAS, the Company desires to provide the Indemnitee with specific contractual assurances of the Indemnitee's rights to full indemnification against litigation risks and reasonable expenses (regardless, among other things, of any amendment to or revocation of the Company's Bylaws or any change in the ownership of the Company or the composition of its Board of Directors) and, to the extent insurance is available, the coverage of the Indemnitee under the Company's directors and officers liability insurance policies; and WHEREAS, the Indemnitee is relying upon the rights afforded under this Agreement in accepting Indemnitee's position as a director of the Company. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows: 1. Definitions. (a) "Corporate Status" describes the status of a person who is serving or has served (i) as a director, officer or employee of the Company, (ii) in any capacity with respect to any employee benefit plan of the Company, or (iii) as a director, partner, member, trustee, officer, employee, or agent of any other Entity at the request of the Company. For purposes of subsection (iii) of this Section 1(a), if Indemnitee is serving or has served as a director, partner, trustee, officer, employee or agent of a Subsidiary, Indemnitee shall be deemed to be serving at the request of the Company. (b) "Entity" shall mean any corporation, partnership, limited liability company, joint venture, trust, foundation, association, organization or other legal entity and any group or division of the Company or any of its subsidiaries. (c) "Expenses" shall mean all reasonable fees, costs and expenses actually and reasonably incurred in connection with any Proceeding (as defined below), including, without limitation, reasonable attorneys' fees, disbursements and retainers (including, without limitation, any such fees, disbursements and retainers incurred by Indemnitee pursuant to Section 11 of this Agreement), fees and disbursements of expert witnesses, private investigators and professional advisors (including, without limitation, accountants), court costs, transcript costs, fees of experts, travel expenses, duplicating, printing and binding costs, telephone and fax transmission charges, postage, delivery services, secretarial services, and other disbursements and expenses, but excluding Liabilities. (d) "Indemnifiable Expenses," "Indemnifiable Liabilities" and "Indemnifiable Amounts" shall have the meanings ascribed to those terms in Section 3(a) below. (e) "Liabilities" shall mean judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid in settlement. (f) "Proceeding" shall mean any threatened, pending or completed claim, action, suit, arbitration, alternate dispute resolution process, investigation, administrative hearing, appeal, or any other proceeding, whether civil, criminal, administrative or investigative, whether formal or informal, including a proceeding initiated by Indemnitee pursuant to Section 11 of this Agreement to enforce Indemnitee's rights hereunder. (g) "Subsidiary" shall mean any Entity of which the Company owns (either directly or through or together with another Subsidiary of the Company) either (i) a general partner, managing member or other similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity interests of such Entity, or (B) 50% or more of the outstanding voting capital stock or other voting equity interests of such Entity. 2. Services of Indemnitee. In consideration of the Company's covenants and commitments hereunder, Indemnitee agrees to serve as a director of the Company; provided, that this Agreement shall not impose any obligation on Indemnitee or the Company to continue Indemnitee's service to the Company at any particular rate or for any particular period of time, unless otherwise required by law or by other agreements or commitments of the parties, if any. 3. Agreement to Indemnify The Company agrees to indemnify Indemnitee as follows: (a) Subject to the exceptions contained in this Agreement, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding (other than an action by or in the right of the Company) by reason of Indemnitee's Corporate Status, Indemnitee shall be indemnified by the Company against all Expenses and Liabilities actually incurred by Indemnitee in connection with such Proceeding (referred to herein as "Indemnifiable Expenses" and "Indemnifiable Liabilities," respectively, and collectively as "Indemnifiable Amounts"). (b) Subject to the exceptions contained in this Agreement, including Section 4(b) below, if Indemnitee was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee's Corporate Status, Indemnitee shall be indemnified by the Company against all Indemnifiable Expenses. 4. Exceptions to Indemnification. Indemnitee shall be entitled to indemnification under Sections 3(a) and 3(b) above in all circumstances other than the following: 2 (a) If indemnification is requested under Section 3(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful, Indemnitee shall not be entitled to payment of Indemnifiable Amounts hereunder. (b) If indemnification is requested under Section 3(b) and (i) it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee failed to act in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company, Indemnitee shall not be entitled to payment of Indemnifiable Expenses hereunder; (ii) it has been adjudicated finally by a court of competent jurisdiction that Indemnitee is liable to the Company with respect to any claim, issue or matter involved in the Proceeding out of which the claim for indemnification has arisen, including, without limitation, a claim that Indemnitee received an improper personal benefit or improperly took advantage of a corporate opportunity, Indemnitee shall not be entitled to payment of Indemnifiable Expenses hereunder with respect to such claim, issue or matter unless the court in which such Proceeding was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Indemnifiable Expenses which such court shall deem proper; or (iii) it has been finally adjudicated by a court of competent jurisdiction that Indemnitee is liable to the Company for an accounting of profits made from the purchase or sale by the Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Securities Exchange Act of 1934, the rules and regulations promulgated thereunder and amendments thereto or similar provisions of any federal, state or local statutory law. 5. Notification and Defense of Claim. As a condition precedent to the right of indemnification, Indemnitee agrees notify the Company in writing as soon as practicable of any Proceeding for which indemnification will or could be sought by Indemnitee and provide the Company with a copy of any summons, citation, subpoena, complaint, indictment, information or other document relating to such Proceeding with which Indemnitee is served; provided that the failure of Indemnitee to give notice as provided herein shall not relieve the Company of its obligations under this Agreement, except to the extent that the Company is adversely affected by such failure. With respect to any Proceeding of which the Company is so notified, the Company will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to Indemnitee. After notice from the Company to Indemnitee of its election so to assume such defense, the Company shall not be liable to Indemnitee for any legal or other expenses subsequently incurred by Indemnitee in connection with such claim, other than as provided below in this Section 5. Indemnitee shall 3 have the right to employ Indemnitee's own counsel in connection with such claim, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the Company, (ii) counsel to Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on any significant issue between the Company and Indemnitee in the conduct of the defense of such action, (iii) counsel to Indemnitee reasonably concludes that Indemnitee may have separate defenses or counterclaims to assert with respect to any issue which may not be consistent with the position of other defendants in such Proceeding or (iv) the Company shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel for Indemnitee shall be at the expense of the Company, except as otherwise expressly provided by this Agreement. The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in the right of the Company or as to which counsel for Indemnitee shall have reasonably made the conclusion provided for in clauses (ii) or (iii) above. The Company shall not settle any Proceeding in any manner, without Indemnitee's written consent, which would (i) impose any penalty or limitation on Indemnitee, (ii) includes an admission of fault of Indemnitee, or (iii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect of such Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee. The Indemnitee will not unreasonably withhold his consent to any proposed settlement. In making the determination required to be made under Delaware law with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that the Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request therefor in accordance with Section 5 of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. 6. Procedure for Payment of Indemnifiable Amounts. As a condition precedent to the right of indemnification, Indemnitee shall submit to the Company a written request, including such documentation and information as are reasonably available to Indemnitee and necessary to establish that Indemnitee is entitled to indemnification hereunder, specifying the Indemnifiable Amounts for which Indemnitee seeks payment under Section 3 or Section 9 of this Agreement and the basis for the claim. Subject to Section 4, the Company shall pay such Indemnifiable Amounts to Indemnitee within twenty (20) calendar days of receipt of the request. At the request of the Company, Indemnitee shall furnish such documentation and information as are reasonably available to Indemnitee and necessary to establish that Indemnitee is entitled to indemnification hereunder. 7. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding any other provision of this Agreement, and without limiting any such provision, to the extent that Indemnitee is, by reason of Indemnitee's Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against all Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with each successfully resolved claim, 4 issue or matter. For purposes of this Agreement, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter. 8. Effect of Certain Resolutions. Neither the settlement nor termination of any Proceeding nor the failure of the Company to award indemnification or to determine that indemnification is payable shall create an adverse presumption that Indemnitee is not entitled to indemnification hereunder. In addition, the termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee's action was unlawful. 9. Agreement to Advance Interim Expenses. The Company shall pay to Indemnitee all Indemnifiable Expenses incurred by Indemnitee in connection with any Proceeding, including a Proceeding by or in the right of the Company, in advance of the final disposition of such Proceeding, if Indemnitee furnishes the Company with a written undertaking to repay the amount of such Indemnifiable Expenses advanced to Indemnitee if it is finally determined by a court of competent jurisdiction that Indemnitee is not entitled under this Agreement to indemnification with respect to such Indemnifiable Expenses, which undertaking shall be an unsecured general obligation of the Indemnitee. The terms and conditions of such undertaking shall be determined by a quorum of the disinterested members of the Board of Directors, if any, acting in good faith and as required by the proper exercise of their fiduciary duties or, if not available, then by the written opinion of independent legal counsel or by the Company's shareholders. 10. Procedure for Payment of Interim Expenses. Indemnitee shall submit to the Company a written request specifying the Indemnifiable Expenses for which Indemnitee seeks an advancement under Section 9 of this Agreement, together with documentation evidencing that Indemnitee has incurred such Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 9 shall be made no later than twenty (20) calendar days after the Company's receipt of such request and the undertaking required by Section 9. 11. Remedies of Indemnitee. (a) Right to Petition Court. In the event that Indemnitee makes a request for payment of Indemnifiable Amounts under Sections 3 and 6 above or a request for an advancement of Indemnifiable Expenses under Sections 9 and 10 above and the Company fails to make such payment or advancement in a timely manner pursuant to the terms of this Agreement, Indemnitee may petition the appropriate judicial authority to enforce the Company's obligations under this Agreement. (b) Burden of Proof. In any judicial proceeding brought under Section 11(a) above, the Company shall have the burden of proving that Indemnitee is not entitled to payment of Indemnifiable Amounts hereunder. 5 (c) Expenses. The Company agrees to reimburse Indemnitee in full for any Expenses incurred by Indemnitee in connection with investigating, preparing for, litigating, defending or settling any action brought by Indemnitee under Section 11(a) above, or in connection with any claim or counterclaim brought by the Company in connection therewith. (d) Validity of Agreement. The Company shall be precluded from asserting in any Proceeding, including, without limitation, an action under Section 11(a) above, that the provisions of this Agreement are not valid, binding and enforceable or that there is insufficient consideration for this Agreement and shall stipulate in court that the Company is bound by all the provisions of this Agreement. (e) Failure to Act Not a Defense. The failure of the Company (including its Board of Directors or any committee thereof, independent legal counsel, or shareholders) to make a determination concerning the permissibility of the payment of Indemnifiable Amounts or the advancement of Indemnifiable Expenses under this Agreement shall not be a defense in any action brought under Section 11(a) above, and shall not create a presumption that such payment or advancement is not permissible. 12. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge that in certain instances, Federal law or applicable public policy may prohibit the Company from indemnifying its directors and officers under the Agreement or otherwise. Indemnitee understands and acknowledges that the Company may be required in the future to undertake with the Securities and Exchange Commission to submit the question of indemnification to a court in certain circumstances for a determination of the Company's right under public policy to indemnify Indemnitee. 13. Representations and Warranties of the Company. The Company hereby represents and warrants to Indemnitee that it has all necessary corporate power and authority to enter into, and be bound by the terms of, this Agreement, and the execution, delivery and performance of the undertakings contemplated by this Agreement have been duly authorized by the Company. This Agreement, when executed and delivered by the Company in accordance with the provisions hereof, shall be a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors' rights generally. 14. Insurance. The Company will use commercially reasonable efforts to obtain and maintain a policy or policies of director's liability insurance customary for similarly situated companies in an amount not less than [ ] with reputable insurance companies providing the members of the Board of Directors with coverage for losses from wrongful acts, and to ensure the Company's performance of its indemnification obligations under this Agreement. In all policies of director and officer liability insurance, Indemnitee shall be named as an insured in such a manner as to provide Indemnitee at least the same rights and benefits as are accorded to the most favorably insured of the Company's officers and directors. Notwithstanding the foregoing, if the Company, after employing commercially reasonable efforts as provided in this Section, determines in good faith that such insurance is not reasonably available, if the premium costs for such insurance are disproportionate to the amount of coverage provided, or if 6 the coverage provided by such insurance is limited by exclusions so as to provide an insufficient benefit, the Company shall use its commercially reasonable efforts to obtain and maintain a policy or policies of insurance with coverage having features as similar as practicable to those described above. Notwithstanding anything to the contrary in this Agreement, the Company shall not indemnify the Indemnitee to the extent the Indemnitee is actually reimbursed from the proceeds of insurance, and in the event the Company makes any indemnification payments to the Indemnitee and the Indemnitee is subsequently reimbursed from the proceeds of insurance, the Indemnitee shall promptly refund such indemnification payments to the Company to the extent of such insurance reimbursement. 15. Fees and Expenses. During the term of the Indemnitee's service as a director, the Company shall promptly reimburse the Indemnitee for all reasonable and documented expenses incurred by him in connection with his service as a director or member of any board committee or otherwise in connection with the Company's business. 16. Contract Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and advancement of Indemnifiable Expenses provided by this Agreement shall be in addition to, but not exclusive of, any other rights which Indemnitee may have at any time under applicable law, the Company's Bylaws, as amended, the Company's Certificate of Incorporation, as amended, or any other agreement, vote of shareholders or directors, or otherwise, both as to action in Indemnitee's official capacity and as to action in any other capacity as a result of Indemnitees's serving as a director of the Company. 17. Successors. This Agreement shall be (a) binding upon all successors and assigns of the Company (including any transferee of all or a substantial portion of the business, stock and/or assets of the Company and any direct or indirect successor by merger or consolidation or otherwise by operation of law) and (b) binding on and shall inure to the benefit of the heirs, personal representatives, executors and administrators of Indemnitee. This Agreement shall continue for the benefit of Indemnitee and such heirs, personal representatives, executors and administrators after Indemnitee has ceased to have Corporate Status. 18. Subrogation. In the event of any payment of Indemnifiable Amounts under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of contribution or recovery of Indemnitee against other persons, and Indemnitee shall take, at the request of the Company, all reasonable action necessary to secure such rights, including the execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. 19. Change in Law. To the extent that a change in applicable law (whether by statute or judicial decision) shall permit broader indemnification than is provided under the terms of the Certificate of Incorporation or Bylaws of the Company, as amended, and this Agreement, Indemnitee shall be entitled to such broader indemnification and this Agreement shall be deemed to be amended to such extent. 20. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement, or any clause thereof, shall be determined by a court of competent 7 jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such provision or clause shall be limited or modified in its application to the minimum extent necessary to make such provision or clause valid, legal and enforceable, and the remaining provisions and clauses of this Agreement shall remain fully enforceable and binding on the parties. 21. Indemnitee as Plaintiff. Except as provided in Section 11 of this Agreement and in the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts or advancement of Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee against the Company, any Entity which it controls, any director or officer thereof, or any third party, unless the Company has consented to the initiation of such Proceeding. This Section shall not apply to affirmative defenses asserted by Indemnitee in an action brought against Indemnitee. 22. Modifications and Waiver. Except as provided in Section 19 above with respect to changes in applicable law which broaden the right of Indemnitee to be indemnified by the Company, no supplement, modification or amendment of this Agreement shall be binding unless executed in writing by each of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement (whether or not similar), nor shall such waiver constitute a continuing waiver. 23. Term of Agreement. This Agreement shall continue until and terminate upon the later of (a) six years after the date that Indemnitee shall have ceased to serve as an officer or director of the Company or (b) the final termination of all Proceedings pending on the date set forth in clause (a) in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder. 24. General Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by hand, (b) when transmitted by facsimile and receipt is acknowledged, or (c) if mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed, or if mailed by certified overnight delivery, on the first business day after the date on which it is so mailed: (i) If to Indemnitee, to: with copies to: Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: James Westra & Marilyn French Cleary, Gottlieb, Sheen & Hamilton One Liberty Plaza 8 New York, NY 10006 Attention: David Leinwand Facsimile: (212) 225-2838 (ii) If to the Company, to: Fidelity National Information Services, Inc. 601 Riverside Avenue Jacksonville, FL 32204 Attention: William P. Foley II Facsimile No.: [_______________] or to such other address as may have been furnished in the same manner by any party to the others. 25. Governing Law. This Agreement shall be governed by and construed and enforced under the laws of the State of Delaware without giving effect to the provisions thereof relating to conflicts of law. 26. Agreement Governs. This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supercedes all prior agreements, whether oral or written, by any officer, employee or representative of any party hereto in respect of the subject matter contained herein; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and cancelled. For avoidance of doubt, the parties confirm that the foregoing does not apply to or limit the Indemnitee's rights under Delaware law or the Company's Certificate of Incorporation or Bylaws. This Agreement is to be deemed consistent wherever possible with relevant provisions of the Company's Bylaws and Certificate of Incorporation; however, in the event of a conflict between this Agreement and such provisions, the provisions of this Agreement shall control. [SIGNATURE PAGE FOLLOWS] 9 IN WITNESS WHEREOF, the parties hereto have executed this Director Indemnification Agreement as of the day and year first above written. COMPANY: FIDELITY NATIONAL INFORMATION SERVICES, INC. By: ____________________________ Name: Title: INDEMNITEE: [SIGNATURE PAGE TO DIRECTOR INDEMNIFICATION AGREEMENT] EX-99.8 10 a04306exv99w8.txt EXHIBIT 99.8 EXHIBIT 99.8 [FIDELITY NATIONAL FINANCIAL LOGO] PRESS RELEASE FIDELITY NATIONAL FINANCIAL, INC. ANNOUNCES THE SIGNING OF A DEFINITIVE STOCK PURCHASE AGREEMENT FOR FIDELITY NATIONAL INFORMATION SERVICES, INC. TO SELL A 25 PERCENT MINORITY EQUITY INTEREST TO AN INVESTMENT GROUP LED BY THOMAS H. LEE PARTNERS AND TEXAS PACIFIC GROUP Jacksonville, Fla. -- (December 23, 2004) -- Fidelity National Financial, Inc. (NYSE:FNF), a Fortune 500 provider of products and outsourced services and solutions to financial institutions and the real estate industry, today announced that it and its subsidiary Fidelity National Information Services, Inc. ("FIS") have entered into a definitive stock purchase agreement under which FIS will sell an approximately 25 percent minority equity interest in the common stock of FIS to an investment group led by Thomas H. Lee Partners, L.P. ("THL") and Texas Pacific Group ("TPG") for a total purchase price of approximately $500 million. The parties previously announced the signing of a letter of intent related to this minority equity interest sale in connection with the announcement of the planned recapitalization of FIS made on December 8, 2004. FNF is currently in the negotiation process with a consortium of lenders with respect to those credit facilities necessary to consummate the planned recapitalization of FIS. Under the terms of the definitive stock purchase agreement, FIS will issue a total of approximately 50 million shares of the common stock of FIS to the investment group led THL and TPG for a combined approximately 25 percent minority equity ownership position. A new Board of Directors will be created at FIS, with William P. Foley, II, current Chairman and Chief Executive Officer of FNF, serving as Chairman and Chief Executive Officer of FIS. FNF will have the right to appoint a majority of the new directors, with both THL and TPG each receiving the right to appoint two members to the FIS Board of Directors. The definitive agreement calls for the establishment of an option pool for members of FIS management to purchase an aggregate 7.5 percent of the fully-diluted shares of FIS at the same price paid by the investment group led by THL and TPG for their combined approximately 25 percent minority equity interest in FIS. A portion of the options will be subject to time-based, quarterly vesting over four- and five-year periods, while the other portion will be subject to performance-based vesting that is dependent upon the valuation of FIS after an initial public offering or other liquidity event. The sale of the minority equity interest in FIS is expected to close in the first quarter of 2005, subject to certain conditions, including the receipt of Hart-Scott Rodino approval, any other required regulatory approvals and the closing of the credit facilities necessary to consummate the previously announced recapitalization of FIS. "The signing of this definitive stock purchase agreement is a significant milestone in our ongoing strategy of recognizing the embedded value of FIS," said Chairman and Chief Executive Officer William P. Foley, II. "This is clearly the first step of several that we will undertake in moving towards our goal of fully unlocking the value of FIS. We look forward to working with both Tom Lee and Texas Pacific Group in this process of both continuing to grow the FIS business and maximizing the value of the FIS asset for FNF stockholders." THL and TPG have registration rights, including the right to initiate a public offering of FIS common stock if one of two criteria is met. Both criteria relate to the potential price and gross proceeds that would be generated by a public offering of FIS. If FIS has not consummated a public offering of FIS common stock within two years of the closing of the minority equity interest sale, THL and TPG have various rights, including the ability to sell their shares of FIS common stock to either FNF or FIS. FNF will file the definitive stock purchase agreement with the Securities and Exchange Commission through a Form 8-K within four legal business days. Fidelity National Financial, Inc., number 262 on the Fortune 500, is a provider of products and outsourced services and solutions to financial institutions and the real estate industry. FNF had total revenue of more than $6.2 billion and earned more than $560 million for the first nine months of 2004, with cash flow from operations of more than $925 million for that same period. FNF is the nation's largest title insurance company, with more than 30 percent national market share, and is also a provider of other specialty insurance products, including flood insurance, homeowners insurance and home warranty insurance. Through its subsidiary Fidelity National Information Services, Inc. ("FIS"), the Company is a leading provider of technology solutions, processing services and information services to the financial services and real estate industries. FIS' software processes nearly 50 percent of all U. S. residential mortgages, it has processing and technology relationships with 45 of the top 50 U.S. banks and more than 3,600 small and mid-sized U.S. financial institutions and it has clients in more than 50 countries who rely on its processing and outsourcing products and services. FIS also provides customized business process outsourcing related to aspects of the origination and management of mortgage loans to national lenders and servicers. FIS offers information services, including property data and real estate-related services that are used by lenders, mortgage investors and real estate professionals to complete residential real estate transactions throughout the U.S. More information about the FNF family of companies can be found at www.fnf.com and www.fidelityinfoservices.com. Thomas H. Lee Partners, L.P., is a Boston-based private equity firm focused on identifying and acquiring substantial ownership positions in growth companies. Founded in 1974, Thomas H. Lee Partners currently manages approximately $12 billion of committed capital, including its most recent fund, the $6.1 billion Thomas H. Lee Equity Fund V. Notable transactions sponsored by the firm include: Refco Group Ltd, Warner Music Group, American Media, AXIS Capital Holdings Limited, Houghton Mifflin, TransWestern Publishing, Endurance Specialty Insurance, HomeSide Lending, Fisher Scientific International, Experian, EquiCredit and Snapple Beverage. Texas Pacific Group, founded in 1993 and based in San Francisco, London and Fort Worth, Texas, is a private investment partnership managing over $13 billion in assets. TPG has extensive experience with public and private investments executed through leveraged buyouts, recapitalizations, spinouts, joint ventures, and restructurings. TPG seeks to invest in world-class franchises across a range of industries, including significant investments in financial services (Endurance Specialty Holdings Ltd.), technology companies (ON Semiconductor, MEMC, Seagate), leading retailers (Petco, J.Crew, Debenhams - UK), branded consumer franchises (Burger King, Del Monte, Ducati Motorcycles), industrials (KRATON Polymers), healthcare (Oxford Health Plans, IASIS Healthcare) and airlines (Continental Airlines, America West). This press release contains statements related to future events and expectations and, as such, constitutes forward-looking statements. These forward-looking statements are subject to known and unknown risks, uncertainties and other factors that may cause actual results, performance or achievements of the company to be different from those expressed or implied above. The company expressly disclaims any duty to update or revise forward-looking statements. The risks and uncertainties which forward-looking statements are subject to include, but are not limited to, the effect of governmental regulations, the economy, competition and other risks detailed from time to time in the "Management's Discussion and Analysis" section of the company's Form 10-K and other reports and filings with the Securities and Exchange Commission. SOURCE: Fidelity National Financial, Inc. CONTACT: Daniel Kennedy Murphy, Senior Vice President, Finance and Investor Relations, 904-854-8120,dkmurphy@fnf.com -----END PRIVACY-ENHANCED MESSAGE-----