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
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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, Xxxxxx X. Xxx Equity Fund V, L.P., a
Delaware limited partnership, Xxxxxx X. Xxx Parallel Fund V, L.P., Xxxxxx X. Xxx
Cayman Fund V, L.P., Xxxxxx X. Xxx Investors Limited Partnership, Xxxxxx
Investments Holdings, LLC, Xxxxxx Investments Employees' Securities Company I
LLC, and Xxxxxx Investments Employees' Securities Company II, LLC.
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"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.
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(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
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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;
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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.
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(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-
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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;
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(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,
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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
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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.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Senior Vice President - Mergers &
Acquisitions Counsel
Facsimile: (000)000-0000
If to FNF:
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Senior Vice President - Mergers &
Acquisitions Counsel
Facsimile: (000)000-0000
If to a Sponsor:
Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx and Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Texas Pacific Group
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
00
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
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:
XXXXXX X. XXX EQUITY FUND V, L.P.
By: THL Equity Advisors V, LLC, its
general partners
By: Xxxxxx X. Xxx Partners, L.P., its sole
member
By: Xxxxxx X. Xxx Advisors LLC, its
general partner
By: ___________________
Name:
Title: Managing Director
XXXXXX X. XXX PARALLEL FUND V, L.P.
By: THL Equity Advisors V, LLC, its
general partner
By: Xxxxxx X. Xxx Partners, L.P., its sole
member
By: Xxxxxx X. Xxx Advisors LLC, its
general partner
By: ____________________________
Name:
Title: Managing Director
COUNTERPART SIGNATURE PAGE TO THE
REGISTRATION RIGHTS AGREEMENT
XXXXXX X. XXX CAYMAN FUND V, L.P.
By: THL Equity Advisors V, LLC, its
general partner
By: Xxxxxx X. Xxx Partners, L.P., its sole
member
By: Xxxxxx X. Xxx Advisors LLC, its
general partner
By: ______________________________
Name:
Title: Managing Director
XXXXXX X. XXX INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp., its
general partner
By: ____________________________
Name: Xxxxxx X. Xxx
Title: Chief Executive Officer
23
COUNTERPART SIGNATURE PAGE TO THE
REGISTRATION RIGHTS AGREEMENT
XXXXXX INVESTMENTS EMPLOYEES'
SECURITIES COMPANY I LLC
By: Xxxxxx Investments Holdings, LLC, its
managing member
By: Xxxxxx Investments, LLC, its
managing member
By: _______________________________________
Name:
Title:
XXXXXX INVESTMENTS EMPLOYEES'
SECURITIES COMPANY II LLC
By: Xxxxxx Investments Holdings, LLC, its
managing member
By: Xxxxxx Investments, LLC, its
managing member
By: _______________________________________
Name:
Title:
XXXXXX INVESTMENTS HOLDINGS, LLC
By: Xxxxxx 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]
