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EXHIBIT 10.1
VOTING AGREEMENT
BY AND AMONG
THE FIRST AMERICAN FINANCIAL CORPORATION,
XXXX X. XXXXXXX
AND
XXXXX X. XXXX
Dated as of November 17, 1998
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 17, 1998 (this "Agreement"), by
and among The First American Financial Corporation, a California corporation
("FAFCO"), Xxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxx X. Xxxx ("Xxxx"; each of Xxxx
and Speizer, a "Shareholder," and collectively, the "Shareholders"). Capitalized
terms used, but not otherwise defined, herein shall have the meanings given them
in the Merger Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this Agreement
FAFCO, Pea Soup Acquisition Corp., a Delaware corporation and wholly-owned
Subsidiary of FAFCO ("FAFCOSUB"), and National Information Group, a California
corporation (the "Company"), have entered into that certain Agreement and Plan
of Merger (the "Merger Agreement") pursuant to which, at the Effective Time,
FAFCOSUB will merge with and into the Company, with the Company continuing as
the surviving corporation (the "Merger");
WHEREAS, as a condition to, and in consideration for, FAFCO's
willingness to enter into the Merger Agreement and to consummate the
transactions contemplated thereby, FAFCO has required that the Shareholders
enter into this Agreement;
WHEREAS, each of the Shareholders, owns the number of Company Common
Shares listed opposite his signature below (the "Shares");
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Agreements.
(a) Voting Agreement. Each Shareholder shall, as to himself, with
respect to any meeting of the holders of Company Common Shares (including,
without limitation, the Company Shareholder Meeting), however such meeting is
called and regardless of whether such meeting is a special or annual meeting of
the shareholders of the Company (a "Meeting of Company Shareholders"), or in
connection with any written consent of the shareholders of the Company (a
"Written Consent"), shall take such actions as are necessary (A) to vote or
cause to be voted all of such Shareholder's Shares in favor of the Merger, the
execution and delivery by the Company of the Merger Agreement and the approval
of the terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in
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furtherance thereof and hereof (collectively, the "Merger Proposal") and (B) not
to vote or cause or permit to be voted all of such Shareholder's Shares in favor
of or against any Takeover Proposal or any other action or agreement that would
in any manner impede, frustrate, prevent or nullify any of the transactions
contemplated by the Merger Agreement, including the Merger, or result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which would result in any
of the conditions to the Company's or FAFCO's obligations under the Merger
Agreement not being fulfilled.
(b) No Inconsistent Arrangements. Each Shareholder hereby
covenants and agrees, severally and not jointly and solely as to himself, that
he shall not (i) transfer (which term shall include, without limitation, any
sale, gift, pledge or other disposition), or consent to any transfer of, any or
all of his Shares, or any interest therein if such transfer would result in the
Shareholder no longer having the power to vote or cause to be voted his Shares
on the Merger Proposal (pursuant to Section 1(a) hereof), (ii) enter into any
contract, option or other agreement or understanding with respect to any such
transfer of any or all of his Shares, or any interest therein, (iii) grant any
proxy, power-of-attorney or other authorization in or with respect to his
Shares, (iv) deposit his Shares into a voting trust or enter into a voting
agreement or arrangement with respect to such Shares, other than pursuant to
this Agreement, or (v) take any other action that would in any way restrict,
limit or interfere with the performance of his obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement. Notwithstanding the
foregoing, the parties acknowledge and agree that (a) Xx. Xxxxxxx has pledged
(i) 300,000 Shares to a stock brokerage firm as collateral for a loan by that
stock brokerage firm to Xx. Xxxxxxx and (ii) 1,224,295 Shares to an escrow agent
as security for payment of a note issued by Xx. Xxxxxxx in connection with the
acquisition of certain of the Shares in 1996 and (b) Xx. Xxxx has pledged 3,000
shares to a stock brokerage firm as collateral for a loan by that stock
brokerage firm to Xx. Xxxx. The Shares pledged by Xx. Xxxxxxx and Xx. Xxxx are
collectively referred to as the Pledged Shares. Such pledges of the Pledged
Shares include, without limitation, powers of sale of the Pledged Shares in the
event of certain defaults. Notwithstanding anything to the contrary contained
herein, the parties agree that Xx. Xxxxxxx and Xx. Xxxx may cause all or part of
the Pledged Shares to be released from the existing pledges and pledged to
another lender in connection with a refinancing of the existing loan
arrangements; provided, however, that the terms of any pledge of the Pledged
Shares in connection with any such refinancing do not contain more burdensome
and restrictive provisions relating to default.
(c) No Solicitation. Each Shareholder hereby agrees, in his
capacity as a shareholder of the Company, that the Shareholder shall not (and
each Shareholder shall use reasonable efforts to cause his representatives and
agents, including, but not limited to, investment bankers, attorneys and
accountants, not to), directly or indirectly, encourage, solicit, participate in
or initiate discussions or negotiations with, or provide any information to, any
Person (other than FAFCO, any of its affiliates or representatives) concerning
any Takeover
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Proposal; provided, however, that nothing contained in this Section 1(c) shall
restrict any Shareholder from taking any action in his capacity as an officer
and/or director of the Company which is permitted to be taken pursuant to
Section 5.3 of the Merger Agreement.
(d) Reasonable Best Efforts. Subject to the terms and conditions
of this Agreement, each of the parties hereto agrees to use its or his
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement and the Merger Agreement; provided, however, that
nothing contained in this Section 1(d) shall restrict any Shareholder from
taking any action in his or her capacity as an officer and/or director of the
Company which is permitted to be taken pursuant to Section 5.3 of the Merger
Agreement.
2. Representations and Warranties.
(a) Each Shareholder hereby represents and warrants, severally
and not jointly and solely as to himself, to FAFCO as follows:
(i) Ownership of Securities. On the date hereof, the
Shareholder is the beneficial owner of the Shares as set forth opposite
his signature hereto. Except for the rights granted pledgees and agents
of pledgees of the Pledged Shares in connection with defaults under the
loan agreements described in Section 1 (b) of this Agreement and the
exercise of remedies in connection therewith, the Shareholder has the
sole power to vote with respect to the matters set forth in Section 1
hereof, sole power of disposition, sole power of conversion, sole power
(if any) to demand appraisal rights and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect to
all of the Shares with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement. As of the date hereof, no default exists under the loan
arrangements and pledge arrangements described in Section 1(b) of this
Agreement, nor has any lender or pledgee or agent of any pledgee
asserted any claim of default or attempted to exercise any remedies with
respect to Pledged Shares.
(ii) Power; Binding Agreement. Each Shareholder has the
power and authority to enter into and perform all of his obligations
under this Agreement. The execution, delivery and performance of this
Agreement by the Shareholder will not violate any agreement to which the
Shareholder is a party including, without limitation, any voting
agreement, proxy arrangement, pledge agreement, shareholders agreement
or voting trust. This Agreement has been duly and validly executed and
delivered by the Shareholder and constitutes a valid and binding
agreement of the Shareholder, enforceable against the Shareholder in
accordance with its terms. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which the
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Shareholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the compliance by the Shareholder with the
terms hereof.
(iii) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is
required for the execution of this Agreement by the Shareholder and the
consummation by the Shareholder of the transactions contemplated hereby,
and none of the execution and delivery of this Agreement by the
Shareholder, the consummation by the Shareholder of the transactions
contemplated hereby or compliance by the Shareholder with any of the
provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to the Shareholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse
of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind
to which the Shareholder is a party or by which the Shareholder or any
of his properties or assets may be bound or (C) violate any order, writ,
injunction, decree, judgment, order, statute, arbitration award, rule or
regulation applicable to the Shareholder or any of his properties or
assets.
(b) FAFCO hereby represents and warrants to the Shareholders, and
to each of them, as follows:
(i) Power; Binding Agreement. FAFCO has the corporate
power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this
Agreement by FAFCO will not violate any material agreement to which
FAFCO is a party. This Agreement has been duly and validly executed and
delivered by FAFCO and constitutes a valid and binding agreement of
FAFCO, enforceable against FAFCO in accordance with its terms.
(ii) No Conflicts. No filing with, and no permit,
authorization, consent or approval of, any Governmental Entity is
required for the execution of this Agreement by FAFCO and the
consummation by FAFCO of the transactions contemplated hereby, and none
of the execution and delivery of this Agreement by FAFCO, the
consummation by FAFCO of the transactions contemplated hereby or
compliance by FAFCO with any of the provisions hereof shall (A) conflict
with or result in any breach of any organizational documents applicable
to FAFCO, (B) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any
material note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding,
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agreement or other instrument or obligation of any kind to which FAFCO
is a party or by which FAFCO or any of its properties or assets may be
bound or (C) violate any order, writ, injunction, decree, judgment,
order, statute, arbitration award, rule or regulation applicable to
FAFCO or any of its properties or assets.
3. Stop Transfer. No Shareholder shall request that the Company register
the transfer (book-entry or otherwise) of any certificate or uncertificated
interest representing any of his Shares, unless such transfer is made in
compliance with this Agreement. In the event of any dividend or distribution, or
any change in the capital structure of the Company by reason of any non-cash
dividend, split-up, recapitalization, combination, exchange of securities or the
like, the term "Shares" shall refer to and include each Shareholder's Shares as
well as all such dividends and distributions of securities and any securities
into which or for which any or all such Shares may be changed, exchanged or
converted.
4. Restriction on Sales of Securities. From the date that is 30 days
prior to the Effective Time, until after such time as results covering at least
30 days of post-Merger combined operations of the Company and FAFCO have been
published by FAFCO, in the form of a quarterly earnings report, an effective
registration statement filed with the SEC, a report to the SEC on Forms 10-K,
10-Q or 8-K, or any other public filing or announcement which includes such
combined results of operations, no Shareholder will sell, transfer or otherwise
dispose of any of his Shares, any FAFCO Common Shares he receives in the Merger
or any other FAFCO Common Shares or FAFCO preferred shares he holds.
5. Termination. This Agreement and the covenants, representations and
warranties and agreements contained herein or granted pursuant hereto shall
terminate upon the earlier to occur of (i) the termination of the Merger
Agreement in accordance with Section 9 thereof or (ii) the consummation of the
transactions contemplated by the Merger Agreement, provided that the provisions
of Sections 4 and 5 hereof shall survive the consummation of such transactions
in accordance with their terms (but shall not survive the termination of the
Merger Agreement).
6. Miscellaneous.
(a) Specific Performance. Each party hereto recognizes and agrees
that if for any reason any of the provisions of this Agreement are not performed
by any other party in accordance with their specific terms or are otherwise
breached, immediate and irreparable harm or injury would be caused to
non-breaching parties for which money damages would not be an adequate remedy.
Accordingly, the parties agree that, in addition to any other available
remedies, the non-breaching party shall be entitled to seek an injunction
restraining any violation or threatened violation of the provisions of this
Agreement.
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(b) Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. Without limiting the
foregoing, with respect to any provision of this Agreement, if it is determined
by a court of competent jurisdiction to be excessive as to duration or scope, it
is the parties' intention that such provision nevertheless be enforced to the
fullest extent which it may be enforced.
(c) Attorneys' Fees. If any action at law or equity, including an
action for declaratory relief, is brought to enforce or interpret any provision
of this Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and expenses from the other party, which fees and expenses shall
be in addition to any other relief which may be awarded.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
(e) Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by facsimile
(which is confirmed), or by registered or certified mail (postage prepaid,
return receipt requested):
if to Speizer, to:
Xxxx X. Xxxxxxx
In care of National Information Group
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
Facsimile: 000-000-0000
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if to Xxxx, to:
Xxxxx X. Xxxx
000 Xxxxx Xxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: 000-000-0000
if to FAFCO, to:
The First American Financial Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: President
Facsimile: 000-000-0000
with a copy to:
White & Case LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Descriptive Headings; Interpretation. The descriptive
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
(h) Assignment; Binding Agreement. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other parties hereto.
(i) Amendment, Modification and Waiver. This Agreement may not be
amended, modified or waived except by an instrument or instruments in writing
signed and delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
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(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, FAFCO has caused its corporate name to be hereunto
subscribed by its officer thereunto duly authorized and each of Speizer and Xxxx
has signed this Agreement, all as of the day and year first above written.
THE FIRST AMERICAN FINANCIAL
CORPORATION
By: ______________________________
Name:
Xxxxxx X. Xxxxxxx
Title: President
Shares: 1,542,909 __________________________________
Xxxx X. Xxxxxxx
Shares: 3,000 __________________________________
Xxxxx X. Xxxx
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