1
EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
------------------------
THIS STOCK PURCHASE AGREEMENT ("Purchase Agreement") is effective the
5th day of January 1996, by and among XXXXX X. XXXXXX ("Stockholder"), having
its principal place of business located at 00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000 and XXXXXXX X. XXXXX, XX and XXXXX X. XXXXX,
individually and as Trustees of the Xxxxx Revocable Trust dated June 3, 1992,
having their principal place of business located at 00000 Xxx Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 (collectively "Purchaser"). Stockholder and
Purchaser are collectively referred to as "Parties".
1.0 RECITALS.
1.1 Stockholder owns one hundred seventy-eight thousand two
hundred seventy-one (178,271) shares ("Shares") of common voting stock of
FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation ("Corporation").
1.2 Stockholder owns other shares of common voting stock of
Corporation that are not being sold to Purchaser.
1.3 Purchaser is currently a stockholder of the Corporation.
1.4 The Parties represented that the Shares are considered
restricted stock under Rule 144 of the Securities Act of 1933, and as such,
resales of the Shares are restricted.
1.5 The January 4, 1996, closing price of the unrestricted
shares of stock of the Corporation, traded on the New York Stock Exchange was
EIGHTEEN and 00/100 DOLLARS ($18.00) per share.
1.6 Purchaser and Seller have utilized the valuation discount
as determined by an independent third party appraiser, Houlihan, Lokey, Xxxxxx
& Zukin to determine the fair market value of the Shares, taking into account
the Shares' status as restricted stock, and both parties agree to be bound by
their findings.
1.7 Stockholder is desirous of selling the Shares to Purchaser
and Purchaser desires to buy the Shares from Stockholder pursuant to the terms
set forth herein.
1.8 Stockholder and Purchaser intend to enter into the Pledge
Agreement to secure Purchaser's payment of the purchase price for the Shares to
Stockholder.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for such good and valuable consideration, the
receipt and adequacy of which is hereby admitted and acknowledged, the parties
hereto agree as follows:
2.0 DEFINITIONS. As used herein, the following capitalized terms
shall have the following meanings:
Page 8 of 12 Pages
2
2.1 "Corporation" shall mean FIDELITY NATIONAL FINANCIAL,
INC., a Delaware corporation.
2.2 "Note" means the Secured Promissory Note for the
principal amount of TWO MILLION EIGHT HUNDRED EIGHTY-SEVEN THOUSAND NINE
HUNDRED NINETY AND 20/100 DOLLARS (2,887,990.20).
2.3 "Parties" shall mean the Stockholder and Purchaser.
2.4 "Pledge Agreement" means the Pledge Agreement dated
January 5, 1996, setting forth the Lender's security interest in the Shares.
2.5 "Purchase Agreement" shall mean this Purchase Agreement,
dated January 5, 1996.
2.6 "Purchase Documents" shall collectively refer to this
Purchase Agreement, Note, and Pledge Agreement.
2.7 "Purchaser" shall mean XXXXXXX X. XXXXX, XX and XXXXX X.
XXXXX, individually and as trustees of the Xxxxx Revocable Trust dated June 3,
1992.
2.8 "Shares" shall mean one hundred seventy-eight thousand
two hundred seventy-one and (178,271) shares of common voting stock of
Corporation.
2.9 "Stockholder" means XXXXX X. XXXXXX.
3.0 STOCK PURCHASE. Purchaser does hereby purchase and Stockholder
does hereby sell, transfer and assign to Purchaser the Shares.
4.0 PURCHASE PRICE. The total purchase price for the Shares shall
be SIXTEEN and 20/100 DOLLARS ($16.20) per share determined by the January 4,
1996 closing price of the New York Stock Exchange for unrestricted shares at
EIGHTEEN DOLLARS ($18.00) per share less the ten percent (10%) discount from
the fair market value of restricted shares determined by the independent
appraisal of Houlihan, Lokey, Xxxxxx & Zukin.
5.0 PAYMENT. Purchaser hereby delivers the Note to Stockholder in
the form and substance attached hereto and incorporated herein by reference.
6.0 PLEDGE.
6.1 As security for payment by the Purchaser of all amounts
due under the Note, the Purchaser agrees to enter into the Pledge Agreement,
whereby Purchaser pledges, mortgages, assigns and transfers, sets over, grants
and delivers to Stockholder a continuing security interest in and to all of the
Purchaser's respective right, title and interest in and to the Shares subject to
the full and timely performance of the terms and conditions of this Purchase
Agreement and the Note.
Page 9 of 12 Pages
3
6.2 A default under the terms and conditions of the Note, this
Purchase Agreement or the Pledge Agreement shall be considered a default under
the terms of all of the Purchase Documents, and the Stockholder, or any
assignee, shall have the right to pursue all remedies against the Purchaser
which are allowed pursuant to the Purchase Documents.
7.0 ATTORNEY'S FEES AND COSTS. In the event of any action brought
by either party against the other arising out of this Purchase Agreement, or
for the purpose of enforcing the Purchase Agreement or collecting any damages
alleged to have resulted to one of the parties by reason of the breach or
failure of performance of the other, the party prevailing in any such action
shall be entitled to recover reasonable attorneys' fees and costs of suit as
may be determined by the Court.
8.0 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
8.1 Purchaser represents and warrants that XXXXXXX X. XXXXX, XX
has been serving as a director and key management employee of the Corporation.
In Purchaser's capacity as such, Purchaser has full knowledge of the condition
of the Corporation. Purchaser has had the opportunity to investigate the
condition of the Corporation, including any and all financial information
pertaining thereto, has done so and has made an independent evaluation of the
Shares.
8.2 Purchaser hereby represents and warrants and agrees that any
dividends received in connection with the Shares or proceeds from the sale of
the Shares shall be used to make principal and interest payments on amounts due
under the Note with and any excess due under the to be used for re-payment of
the Note.
9.0 HEIRS AND ASSIGNS. All the covenants, representations,
warranties and indemnifications of the Parties under this Purchase Agreement
shall survive the effective date of this transaction. The rights created by
this Purchase Agreement shall inure to the benefit of and the obligations
created by this Purchase Agreement shall be binding upon heirs, administrators,
personal representatives, successors and assigns of the Parties.
10.0 ARBITRATION OF DISPUTES. Any controversy or claim arising out
of this Purchase Agreement, or the breach thereof, shall be settled by
arbitration at Irvine, California, in accordance with the then current rules of
the American Arbitration Association (the "Association"), the award from which
arbitration shall be binding upon both parties and their successors, regardless
of whether one of said parties fails or refuses to participate therein, and
judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. All demands for arbitration shall be in writing
and made by actual delivery or by certified or registered mail, return receipt
requested, with a copy to the Association. In addition to the rules governing
such arbitration, the parties shall have at their disposal the broadest
pretrial discovery rights as are then available under the laws and judicial
rules of the jurisdiction in which the arbitration is to be held (including but
not limited to those set forth in Section 1283.05 of the California Code of
Civil Procedure; provided, that any dispute between the parties relating to
discovery shall be submitted to the arbitration panel for resolution.
Page 10 of 12 Pages
4
Disputes regarding interim or ancillary relief pending final decision of the
arbitration panel in a matter hereunder shall also be submitted to the
arbitration panel for resolution.
11.0 GOVERNING LAW/VENUE. It is the intent of the Parties hereto
that all questions with respect to the construction of this Purchase Agreement
and the rights and liabilities of the parties hereto, shall be determined in
accordance with the provisions of the laws of the State of California, in such
case made and provided. Venue, for the purposes of the Purchase Agreement,
shall be considered the City of Irvine, County of Orange and State of
California.
12.0 PARAGRAPH HEADINGS. The subject headings of the paragraphs of
this Purchase Agreement are included for purposes of convenience only and shall
not affect the construction or interpretation of any of its provisions.
13.0 RECITALS. The Recitals contained in this Purchase Agreement
are hereby incorporated by reference within the terms and conditions of this
Purchase Agreement and are to have full force and effect. To the extent that
the terms and conditions of the Purchase Agreement differ from the Recitals,
then the terms and conditions of this Purchase Agreement shall control.
14.0 SEVERABILITY. In the event that any of the terms of this
Purchase Agreement are held to be partially or wholly invalid or unenforceable
for any reason whatsoever, such holding shall not affect, alter, modify or
impair in any manner whatsoever, any of the other terms, or the remaining
portion of any term, held to be partially invalid or unenforceable.
15.0 AMENDMENTS. The parties hereto may at any time amend this
Purchase Agreement in any particular, by mutual consent expressed in writing.
16.0 GENDER. Whenever required by the context, the singular number
shall include the plural number, the plural number shall include the singular
number, the masculine gender shall include the neuter and feminine genders and
vice versa.
17.0 NOTICE. Any notice or notices required under the provisions of
this Purchase Agreement shall only be valid when sent by certified mail, return
receipt requested, to the addresses set forth herein, or as otherwise notified
to the other party in writing. The notice shall be considered delivered as of
the date deposited with the U.S. Post Office.
18.0 WAIVER. No amendment or waiver of any of the provisions of
this Purchase Agreement shall be effective unless same shall be in writing and
signed by the Parties hereto. Any such written waiver or amendment shall be
effective only for the specific instance and for the specific purpose for which
it was given. One or more waivers of any covenant, term or condition of this
Purchase Agreement by the Parties shall not be construed by either party as a
waiver of a subsequent breach of the same covenant, term or condition. The
consent or approval of either party to or of any act by the other party of a
nature requiring consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any subsequent similar act.
Page 11 of 12 Pages
5
19.0 COOPERATION AND FURTHER ACTIONS. The Parties agree to perform
any and all acts to execute and deliver any and all documents necessary or
convenient to carry out the terms of this Purchase Agreement.
20.0 COUNTERPARTS. This Purchase Agreement may be executed in one
or more counterparts, each of which when executed and delivered shall be an
original, and all of which when executed shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the Parties hereto have has caused
this Purchase Agreement to be executed as of the Effective Date.
WITNESS/ATTEST:
------------------------------ ----------------------------------
XXXXX X. XXXXXX
------------------------------ "Stockholder"
XXXXX REVOCABLE TRUST dated
June 3, 1992
------------------------------ By:
------------------------------
XXXXXXX X. XXXXX, XX
------------------------------ Its: Trustee
------------------------------ By:
------------------------------
XXXXX X. XXXXX
------------------------------ Its: Trustee
------------------------------ ----------------------------------
XXXXXXX X. XXXXX, XX, Individually
------------------------------
------------------------------ ----------------------------------
XXXXX X. XXXXX, Individually
------------------------------ "Purchaser"
Prepared by:
The Xxxxx Firm
0000 Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
(000) 000-0000
2802-12.1
Page 12 of 12 Pages
