EXHIBIT 99.3
STOCKHOLDER'S AGREEMENT
PART OF THE ANCILLARY AGREEMENTS
REFERRED TO IN THE
STOCK PURCHASE AGREEMENT
BETWEEN ALLTEL CORPORATION AND FIDELITY NATIONAL FINANCIAL, INC.
TABLE OF CONTENTS
STOCKHOLDER'S AGREEMENT
SECTION PAGE
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1. Certain Definitions.................................. 1
2. Representations and Warranties....................... 2
3. Limitation on Disposition of Voting Securities....... 3
4. Board Representation................................. 3
5. Registration Rights.................................. 4
6. Specific Performance................................. 14
7. Amendment and Modification........................... 14
8. Notices.............................................. 14
9. Severability......................................... 14
10. Assignment........................................... 14
11. Governing Law........................................ 15
12. Jurisdiction and Venue............................... 15
13. Counterparts......................................... 15
14. Headings............................................. 15
15. Entire Agreement..................................... 15
16. Third Parties........................................ 15
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated __________ ______, 2003 (the "Agreement"),
between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (the
"Company"), and ALLTEL CORPORATION, a Delaware corporation (the "Stockholder").
A. Capitalized terms used but not defined in this Agreement shall have the
respective meanings given to them in the Transaction Agreement.
B. Pursuant to a Stock Purchase Agreement, dated as of January 28, 2003
(the "Transaction Agreement"), between the Company and the Stockholder: (i) the
Stockholder is selling to the Company, and the Company is purchasing from the
Stockholder, the Continuing Business (as defined in the Transaction Agreement);
and (ii) in consideration therefor, the Company is delivering to the Stockholder
the Purchase Price (as defined in the Transaction Agreement), including issuing
to the Stockholder shares of the Company's common stock, par value $.0001 per
share (the "Common Stock"); and
C. The Company and the Stockholder desire to establish in this Agreement
certain terms and conditions of the Stockholder's relationship with the Company.
NOW, THEREFORE in consideration of the mutual covenants and agreements
contained herein and in the Transaction Agreement, the parties hereto agree as
follows:
1. Certain Definitions.
(a) The term "Controlled Affiliate" shall mean any corporation,
partnership or other entity that is "controlled by", "controlling" or "under
common control with" (as such terms are defined in Rule 405 under the Securities
Act) the applicable party.
(b) The term "Lock-up Period" shall mean the period beginning on the
Closing Date and ending on the earlier of (i) the one-year anniversary of the
Closing Date or (ii) the expiration of the "Restricted Period", as defined in
Section 2 of the Non-Competition Agreement, as a result of the occurrence of an
event satisfying the provisions of Section 2(ii)(E)(1) or (2) of the
Non-Competition Agreement.
(c) The term "Securities Act" shall mean the Securities Act of 1933,
as amended.
(d) The term "Suspension Period" shall mean any period during which
the Company fails to keep any registration statement effective and usable for
resale of Voting Securities. A Suspension Period shall commence on and include
the date that the Company gives notice that any registration statement is no
longer effective or usable for resale of Voting Securities and shall continue
until and including the date when each
holder of Voting Securities covered by such registration statement either
receives copies of a supplemented or amended prospectus or is advised in writing
by the Company that the use of the prospectus may be resumed.
(e) The term "Term" shall mean the period beginning on the Closing
Date and continuing for so long as the Stockholder beneficially owns any Voting
Securities.
(f) The term "Voting Securities" shall mean all securities,
including the Common Stock of the Company, entitled to vote generally in the
election of directors of the Company.
2. Representations and Warranties.
(a) The Company represents and warrants to the Stockholder as
follows:
(i) The Company has requisite corporate power and corporate
authority to execute, deliver and perform this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except that (x) such enforcement may be subject to any bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect relating to or limiting creditors' rights generally and (y) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to certain equitable defenses and to the discretion of the court
before which any proceedings therefor may be brought;
(iii) The execution, delivery and performance of this
Agreement by the Company do not violate or conflict with or constitute a default
under the Company's certificate of incorporation, by-laws or any material
agreement to which it is a party or by which it or its property is bound;
(iv) As of the date hereof, no other party is entitled to any
registration or similar right with respect to any securities of the Company;
(v) There is no voting trust, voting agreement or arrangement
with respect to any of its Voting Securities; and
(vi) As of the date hereof, the Company meets the eligibility
requirements for use of Form S-3 for registration of securities for resale by
the Stockholder under the Securities Act, as set forth in the General
Instructions to such form (the "S-3 Eligibility Requirements") and has no reason
to believe that it will not continue to meet the S-3 Eligibility Requirements.
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(b) The Stockholder represents and warrants to the Company as
follows:
(i) The Stockholder has requisite corporate power and
corporate authority to execute, deliver and perform this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except that (x) such enforcement may be subject to any
bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or
hereafter in effect, relating to or limiting creditors' rights generally and (y)
the remedy of specific performance and injunctive and other forms of equitable
relief may be subject to certain equitable defenses and to the discretion of the
court before which any proceedings therefor may be brought;
(iii) The execution, delivery and performance of this
Agreement by the Stockholder do not violate or conflict with or constitute a
default under the Stockholder's certificate of incorporation, by-laws or any
material agreement to which it is a party or by which it or its property is
bound; and
(iv) The Stockholder is acquiring the shares of Common Stock
pursuant to the Transaction Agreement for investment purposes only and not with
any present intention of distributing or selling the shares of Common Stock in
violation of federal, state or other United States securities laws.
3. Limitation on Dispositions of Voting Securities.
During the Lock-Up Period, the Stockholder shall not sell or otherwise
dispose of the Voting Securities acquired by the Stockholder on the Closing Date
under the Stock Purchase Agreement otherwise than (a) in connection with a
merger, consolidation, or reorganization approved by the Board of Directors of
the Company involving the exchange of Voting Securities for, or the conversion
of Voting Securities into, other securities in a transaction in which the
stockholders of the Company do not acquire at least a majority of the voting
power of the surviving or successor or surviving entity or enterprise, (b) in
connection with a tender offer or exchange offer for more than a majority of the
Company's voting Securities, (c) with the prior approval of the Board of
Directors, (d) in connection with a registered offering by the Company with
respect to which the Stockholder has the "piggyback registration" rights
specified in Section 5(b), or (e) in the event of the Company's failure to honor
its obligations under Section 4.
4. Board Representation. So long as the Stockholder beneficially owns at
least fifty percent (50%) of the Voting Securities acquired by the Stockholder
on the Closing Date under the Stock Purchase Agreement (giving effect to
adjustment for stock splits, reverse stock splits, stock dividends and other
similar transactions after the date hereof), the Stockholder shall be entitled
to designate one individual (each, a "Designee") to be elected or appointed to
the Board of Directors of the Company (the "Board"). In furtherance of the
foregoing, prior to the Closing, the Company shall take all actions
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necessary, including amending its Bylaws, to cause the Board to be expanded by
one seat and to cause a Designee to be elected to the class of directors whose
term shall expire in 2005. At the end of the term of such Designee, (a) the
Stockholder shall designate a Designee to fill the vacancy on the Board and (b)
the Company shall use its best efforts to (i) cause such Designee to be included
in the management slate of directors up for election at the next annual or
special meeting of the Company called to elect directors, (ii) solicit proxies
in favor of the slate of directors that includes such Designee and (iii)
recommend that holders of Voting Securities vote in favor of the slate of
directors that includes such Designee. In the event of a vacancy on the Board by
reason of the incapacity, death, removal or resignation of a Designee, the
Stockholder shall designate a new Designee and the Company shall take all
actions necessary to cause a such Designee to be elected to the class of
directors in which such vacancy was created.
5. Registration Rights.
(a) Demand Registration.
(i) At any time following the expiration of the Lock-Up
Period, and continuing thereafter for so long as the Stockholder and its
Controlled Affiliates, at such time, beneficially own at least twenty-five
million dollars ($25,000,000) of Voting Securities, the Stockholder shall have
the right to make, on not more than two (2) separate occasions (giving effect to
the provisions of this Section 5), written demand upon the Company (each, a
"Stockholder Demand"), to register under the Securities Act all or any portion
of the shares of Voting Securities beneficially owned by the Stockholder or its
Controlled Affiliates (the shares subject to such demand or subject to a
Stockholder Request (as hereinafter defined), hereunder collectively being
referred to as the "Subject Stock"), which Stockholder Demand shall specify the
number of shares to be registered and the intended method or methods of
disposition of such Subject Stock, and the Company shall use its best efforts to
cause the disposition of such shares to be registered under the Securities Act
as soon as reasonably practicable so as to permit promptly the disposition
thereof in accordance with the intended method or methods of disposition stated
in the Stockholder Demand, including, but not limited to, an offering on a
delayed or continuous basis pursuant to Rule 415 (or any successor rule) under
the Securities Act (a "Rule 415 Offering"), if the Company is then eligible to
register the sale or other disposition of such Subject Stock on Form S-3 (or a
successor form); provided, however, that each such demand shall cover no less
than twenty-five million dollars ($25,000,000) of Subject Stock.
(ii) In connection therewith, the Company shall prepare, and
as promptly as practicable (and in any event within thirty (30) days of the
receipt of the request), file, on Form S-3 if permitted or otherwise on the
appropriate successor form, a registration statement under the Securities Act to
effect such registration. The Company shall use its best efforts to have such
registration statement declared effective by the Securities and Exchange
Commission (the "Commission"), as soon as practicable thereafter and, if
requested in connection with a Rule 415 Offering, to keep such registration
statement continuously effective for a period of at least one hundred and
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eighty (180) calendar days following the date on which such registration
statement is declared effective, plus, a period of time equal to any Blackout
Period (as hereinafter defined) (or such shorter period which will terminate
when all of the Subject Stock covered by such registration statement has been
sold pursuant thereto), including, if necessary, by filing with the Commission a
post-effective amendment or a supplement to the registration statement or the
related prospectus or any document incorporated therein by reference or by
filing any other required document or otherwise supplementing or amending the
registration statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such registration
statement or by the Securities Act, the Securities Exchange Act of 1934, any
state securities or blue sky laws, or any rules and regulations thereunder.
(iii) The Stockholder agrees to provide information and
materials solely with respect to the Stockholder's ownership of the Subject
Stock and its intended method of distribution thereof.
(iv) The Company (x) shall not be obligated to prepare or file
more than one (1) registration statement pursuant to this Section 5(a) during
any twelve-month period, (y) shall not be obligated to cause any audit to be
undertaken in connection with any such registration that the Company is not
otherwise required to undertake in connection with its obligations under the
Securities Act, the Exchange Act and the rules and regulations thereunder, and
(z) shall be entitled to postpone for a reasonable period of time, but not in
excess of ninety (90) days, the filing of any registration statement otherwise
required to be prepared and filed by the Company if (1) the Company is, at such
time, conducting or about to conduct an underwritten public offering of
securities and is advised by its managing underwriter or underwriters that such
offering would in its or their opinion be materially adversely affected by the
registration so requested (any postponement pursuant to this clause (1) shall be
referred to as a "Company Delay"), or (2) the Company determines in its
reasonable judgment and in good faith that the registration and distribution of
the shares of Subject Stock would interfere with any pending or imminent
material financing (other than an underwritten public offering), acquisition,
disposition, corporate reorganization or other material transaction or
development involving the Company. In no event shall the Company invoke a
Company Delay more than once in any twelve-month period. In the event of any
Company Delay, the Stockholder shall have the right to withdraw the request for
registration by giving written notice to the Company within twenty (20) days
after receipt of the notice of postponement (and, in the event of such
withdrawal, such request shall be ignored for purposes of determining the number
of registrations to which the Stockholder is entitled pursuant to this Section
5(a)) and following any such Company Delay, the Company will not file any
registration statement (other than for purposes of a stock option or other
employee benefit plan) without providing the Stockholder (x) with notice that
the Company Delay is no longer in effect and (y) an opportunity for thirty (30)
days to exercise its rights to a Stockholder Demand.
(v) In the event that, at any time while any Rule 415 Offering
remains effective, the Company determines in its reasonable judgment and in good
faith
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that the sale of Subject Stock would require disclosure of material information
which the Company has a bona fide business purpose for preserving as
confidential or that the Company is unable to comply with Commission
requirements, the Stockholder shall, upon written notice of such good faith
determination, suspend sales of Subject Stock for a period (a "Blackout
Period"), beginning on the date of receipt of such notice and expiring on the
earlier of (x) the date upon which such material information is disclosed to the
public or ceases to be material or the Company is able to comply with Commission
requirements, as the case may be, and (y) thirty (30) days after the receipt of
such notice from the Company.
(vi) The Company shall agree not to effect any public sale or
distribution of any Voting Securities within thirty (30) days before and ninety
(90) days (or such shorter period as may be agreed by the parties hereto) after,
the effective date of any registration statement filed pursuant to this Section
5(a) (except as part of such underwritten registration or pursuant to
registration of securities to be issued pursuant to a stock option or other
employee benefit or similar plan or securities to be proposed to be issued in
exchange for securities or assets of, or in connection with a merger or
consolidation with, another corporation).
(vii) In the event that any offering of Subject Stock is to be
made by or through an underwriter, the Stockholder shall select a nationally
recognized underwriter or underwriters to manage and administer the offering,
subject to the approval of the Company (which approval shall not be unreasonably
withheld or delayed), and the Company and the Stockholder shall enter into an
underwriting agreement with the managing underwriter or underwriters containing
representations, warranties, indemnities and agreements customarily included
(but not inconsistent with the agreements contained herein) by an issuer of
common stock in underwriting agreements with respect to offerings of common
stock for the account of, or on behalf of, such issuers; provided, however, that
the Stockholder's representations shall solely relate to its ownership of the
Subject Stock and its intended method of distribution. In connection with the
sale of Subject Stock hereunder, the Stockholder may, at its option, require
that any and all representations and warranties by, and indemnities and
agreements of, the Company to or for the benefit of such underwriter or
underwriters (or which would be made to or for the benefit of such an
underwriter or underwriter if such sale of Subject Stock were pursuant to a
customary underwritten offering) be made to and for the benefit of the
Stockholder and that any or all of the conditions precedent to the obligations
of such underwriter or underwriters (or which would be so for the benefit of
such underwriter or underwriters under a customary underwriting agreement) be
conditions precedent to the obligations of the Stockholder in connection with
the disposition of its securities pursuant to the terms hereof (it being agreed
that in connection with any registration made pursuant to a Stockholder Demand,
without limiting any rights or remedies of the Stockholder, in the event any
such condition precedent shall not be satisfied and, if not so satisfied, shall
not be waived by the Stockholder, such registration shall not be counted as a
permitted Stockholder Demand hereunder).
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(viii) The Company and any other stockholder having
"piggyback" registration rights shall not be entitled to register securities on
any registration statement filed pursuant to Section 5(a).
(b) Piggyback Registration. If, at any time after the date hereof
and continuing thereafter as long as the Stockholder or its Controlled
Affiliates beneficially own any Voting Securities, the Company proposes to
register any Voting Securities under the Securities Act (other than (i) pursuant
to Section 5(a) above, (ii) securities to be issued pursuant to a stock option
or other employee benefit or similar plan, or (iii) securities proposed to be
issued in exchange for securities or assets of, or in connection with a merger
or consolidation with, another corporation), the Company shall, as promptly as
practicable, give written notice to the Stockholder of the Company's intention
to effect such registration. If, within fifteen (15) days after receipt of such
notice, the Stockholder submits a written request to the Company (a "Stockholder
Request") specifying the amount of Subject Stock that it proposes to sell or
otherwise dispose of in accordance with this Section 5(b), the Company shall use
its best efforts to include the shares specified in the Stockholder Request in
such registration. Notwithstanding the foregoing, if the offering pursuant to
such registration statement is to be made by or through underwriters, the
Company shall not be required to include Subject Stock therein if either (A) the
Stockholder does not agree to offer its stock by or through the underwriters
selected by the Company for the registration of the shares of Voting Securities
and execute an underwriting agreement containing representations, warranties,
indemnities and agreements customarily included (but not inconsistent with the
agreements contained herein) by an issuer of common stock in underwriting
agreements with respect to offerings of common stock for the account of, or on
behalf of, such issuers; provided, however, that the Stockholder's
representations shall solely relate to its ownership of the Subject Stock and
its intended method of distribution or (B) the underwriter managing the offering
advises the Stockholder in writing that in the underwriter's opinion the
inclusion of such stock (or any portion thereof) would materially adversely
affect such offering; provided, however, that (x) in the case of a registration
statement to effectuate the sale of securities for the account of the Company,
the Stockholder shall, after inclusion of the shares of Voting Securities of the
Company, be treated on a pro rata basis with any other stockholder included in
such registration, based on the number of shares of Voting Securities proposed
to be registered by each such stockholder and (y) in the case of a registration
statement filed at the request or demand of another stockholder, shall be
treated on a similar pro rata basis with all other selling stockholders after
giving priority to the stockholder making such request or demand. No
registration effected under this Section 5(b) shall relieve the Company of its
obligation to effect any registration upon request under Section 5(a). At any
time commencing after the date hereof, and continuing hereafter for so long as
the Stockholder and its Controlled Affiliates beneficially own Voting
Securities, the Company shall not grant any registration rights to any other
holder of Voting Securities unless, in connection with such grant of
registration rights to another holder of Voting Securities, the Stockholder is
granted "piggyback" rights in connection therewith and in the manner set forth
in this subsection (b). If the Stockholder has been permitted to participate in
a proposed offering pursuant to this Section 5(b), the Company thereafter may
determine
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either not to file a registration statement relating thereto, or to withdraw
such registration statement, or otherwise not to consummate such offering,
without any liability hereunder other than the expenses referred to in Section
5(e).
(c) Certain Procedures.
(i) In connection with any offering of shares of Subject Stock
registered pursuant to Section 5(a) or (b), the Company shall: (A) furnish to
the Stockholder such number of copies of any prospectus (including preliminary
and summary prospectuses) and conformed copies of the registration statement
(including amendments or supplements thereto and, in each case, all exhibits)
and such other documents as it may reasonably request, but only while the
Company shall be required under the provisions hereof to cause the registration
statement to remain current; (B) notify the Stockholder, at any time when a
prospectus relating to the registration of its Subject Stock is required to be
delivered under the Securities Act, upon discovery that, or upon the happening
of any event as a result of which, the prospectus, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein in the
light of the circumstances under which they were made, not misleading and
(subject to the good faith determination of the Board as to whether to permit
sales under such registration statement), at the request of the Stockholder
promptly prepare and furnish to it a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include 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 the
light of the circumstances under which they were made, not misleading; (C)
comply with all applicable rules and regulations of the Commission; (D) use its
best efforts to list, if required by the rules of the applicable securities
exchange or, if securities of the same class are then so listed, the Subject
Stock covered by such registration statement on the New York Stock Exchange, or
on any other securities exchange on which the Subject Stock is then listed; (E)
before filing any registration statement or any amendment or supplement thereto,
and as far in advance as is reasonably practicable, furnish to the Stockholder
and its counsel copies of such documents; the Company shall not file any such
document which contains statements referring to the Stockholder to which the
Stockholder shall reasonably object; and (F) reasonably cooperate with the
Stockholder in effecting any underwritten offering, including causing its
officers and employees to participate in any "road shows" or similar
presentations relating thereto.
(ii) In connection with any offering of Subject Stock
registered pursuant to this Section 5, the Company shall (A) instruct any
transfer agent and registrar of the Subject Stock to release any stop transfer
orders with respect to such Subject Stock and (B) in the event the Subject Stock
is certificated, furnish to the underwriter, if any, or the Stockholder,
unlegended certificates representing ownership of the Subject Stock being sold
in such denominations as requested.
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(iii) The Stockholder agrees that upon receipt of any notice
from the Company of the happening of any event of the kind described in
subclause (i)(B) of this Section 5(c), it will forthwith discontinue its
disposition of Subject Stock pursuant to the registration statement relating to
such Subject Stock until its receipt of the copies of the supplemented or
amended prospectus contemplated by subclause (i)(B) of this Section 5(c) and, if
so directed by the Company, will deliver to the Company (at the Company's
expense) all copies then in its possession of the prospectus relating to such
Subject Stock at the time of receipt of such notice. If the Stockholder's
disposition of Subject Stock is discontinued pursuant to the foregoing sentence,
unless the Company thereafter extends the effectiveness of the registration
statement to permit dispositions of Subject Stock by the Stockholder for an
aggregate of one hundred eighty (180) days, plus a period of time equal to any
Blackout Period, whether or not consecutive, if the Company is eligible to use a
Form S-3, or successor form, the registration statement shall be ignored for
purposes of determining the number of registrations to which the Stockholder is
entitled pursuant to Section 5(a).
(iv) In connection with any offering of Subject Stock
registered pursuant to this Section 5, the Company shall promptly (A) notify the
Stockholder of (x) the filing and effectiveness of the registration statement
and prospectus and any amendment or supplements thereto, (y) the receipt of any
comments from the Commission or any state securities law authorities or any
other governmental authorities with respect to any such registration statement
or prospectus or any amendments or supplements thereto, and (z) any oral or
written stop order with respect to such registration, any suspension of the
registration or qualification of the sale of such Subject Stock in any
jurisdiction or any initiation or threat of any proceedings with respect to any
of the foregoing and (B) use its best efforts to obtain the withdrawal of any
order suspending the registration or qualification (or the effectiveness
thereof) or suspending or preventing the use of any related prospectus in any
jurisdiction with respect thereto.
(v) In connection with any offering of Subject Stock
registered pursuant to this Section 5, the Company shall, if requested by the
managing underwriter or underwriters of any registration or by the Stockholder,
subject to approval of counsel to the Company in its reasonable judgment,
promptly incorporate in a prospectus, supplement or post-effective amendment to
the registration statement such information concerning underwriters and the plan
of distribution of the Subject Stock as such managing underwriter or
underwriters or the Stockholder shall reasonably furnish to the Company in
writing and request be included therein, including, without limitation, with
respect to the number of shares of Subject Stock being sold by the Stockholder
to such underwriter or underwriters, the purchase price being paid therefor by
such underwriter or underwriters and with respect to any other terms of the
underwritten offering of the Subject Stock to be sold in such offering; and make
all required filings of such prospectus, supplement or post-effective amendment
as soon as possible after being notified of the matters to be incorporated in
such prospectus, supplement or post-effective amendment.
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(vi) In connection with any offering of Subject Stock
registered pursuant to this Section 5, the Company shall make available for
inspection by the Stockholder, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by the Stockholder or underwriter all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees, attorneys and independent
accountants to supply all information reasonably requested by any such sellers,
underwriters, attorneys, accountants or agents in connection with such
registration statement. Information which the Company determines, in good faith,
to be confidential shall not be disclosed by such persons unless (A) the
disclosure of such information is necessary to avoid or correct a misstatement
or omission in such registration statement, or (B) the release of such
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. The Stockholder agrees, on its own behalf and on behalf
of all its underwriters, accountants, attorneys and agents, that the information
obtained by it as a result of such inspections and which the Company determines,
in good faith, to be confidential, shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until such is
made generally available to the public. The Stockholder further agrees, on its
own behalf and on behalf of all its underwriters, accountants, attorneys and
agents, that it will, upon learning that disclosure of such information is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action to prevent
disclosure of the information deemed confidential.
(vii) In connection with any offering of Subject Stock
registered pursuant to this Section 5, the Company shall use its best efforts to
furnish to the Stockholder, if requested, a signed counterpart of (A) an opinion
of counsel for the Company and (B) a comfort letter signed by the independent
public accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement, covering
such matters with respect to such registration statement and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date of
such financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities for the account of, or on behalf of,
an issuer of common stock, such opinion and comfort letters to be dated the date
such opinions and comfort letters are customarily dated in such transactions,
and covering in the case of such legal opinion, such other legal matters and, in
the case of such comfort letter, such other financial matters, as the
Stockholder may reasonably request.
(d) Effectiveness. No registration statement will be deemed to have
become effective (and the related registration will not be deemed to have been
effected) unless it has been declared effective by the Commission; provided,
however, that if, after it has been declared effective, the offering of any
Voting Securities pursuant to such registration statement is interfered with by
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court, such registration statement will be
deemed not to have become effective and the related registration will not be
deemed to have been effected. In the event of one or more
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Suspension Periods, the applicable time periods shall be extended by the number
of days included in each such Suspension Period, and, in the event any
Suspension Period occurs sooner than thirty (30) days after the end of the
previous Suspension Period or thirty (30) days after the initial effectiveness
of any registration statement, none of these days between such Suspension
Periods or prior to such Suspension Period shall be included in computing such
applicable time period.
(e) Fees and Expenses. In connection with any registration pursuant
to Section 5(a) or (b): (i) the Stockholder shall only be responsible for
applicable agent fees, transfer taxes, discounts and commissions and
underwriting discounts and commissions related to shares of Subject Stock being
sold by the Stockholder, and (ii) the Company shall pay all other fees and
expenses in connection with any registration statement under this Agreement,
including, without limitation, all registration and filing fees, all printing
costs, all fees and expenses of complying with securities or blue sky laws, fees
and disbursements of the Company's counsel and accountants and any disbursements
of underwriters customarily paid by issuers in secondary offerings and the fees
and disbursements of Stockholder's counsel.
(f) Company Indemnification. In the case of any offering registered
pursuant to this Section 5, the Company agrees to indemnify and hold the
Stockholder, each underwriter, if any, of the Subject Stock under such
registration and each person who controls any of the foregoing within the
meaning of Section 15 of the Securities Act, and any director or officer of the
foregoing, harmless against any and all losses, claims, damages or liabilities
(including reasonable legal fees and other reasonable expenses incurred in the
investigation and defense thereof) to which they or any of them may become
subject under the Securities Act or otherwise (collectively "Losses"), insofar
as any such Losses shall arise out of or shall be based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement relating to the sale of such Subject Stock (as amended if
the Company shall have filed with the Commission any amendment thereof), or the
omission or alleged omission to state therein 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 or (ii) any untrue
statement or alleged untrue statement of a material fact contained in the
prospectus relating to the sale of such Subject Stock (as amended or
supplemented if the Company shall have filed with the Commission any amendment
thereof or supplement thereto), or the omission or alleged omission to state
therein 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; provided, however, that the indemnification agreement contained
in this Section 5(f) shall not apply to such Losses which shall arise out of or
shall be based upon any such untrue statement or alleged untrue statement, or
any such omission or alleged omission, which shall have been made in reliance
upon and in conformity with information furnished in writing to the Company by
the Stockholder, specifically for use in connection with the preparation of the
registration statement or prospectus contained in the registration statement or
any such amendment thereof or supplement thereto.
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(g) Stockholder Indemnification. In the case of each offering
registered pursuant to this Section 5, the Stockholder will furnish, or cause to
be furnished, in writing, to the Company information regarding such holder's
ownership of Voting Securities and its intended method of distribution thereof
and, to the extent permitted by law, agrees to indemnify and hold harmless the
Company, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, and the directors and officers of the Company,
against any Losses, with respect to any statement in or omission from such
registration statement or prospectus contained in such registration statement
(as amended or supplemented if amended or supplemented as aforesaid), if such
statement or omission shall have been made in reliance upon and in conformity
with information furnished in writing to the Company by the Stockholder,
specifically for use in connection with the preparation of such registration
statement or prospectus contained in such registration statement or any such
amendment thereof or supplement thereto; except that the Stockholder will not be
required to contribute any amount in excess of the net proceeds received by such
Stockholder from the sale of Voting Securities registered and sold pursuant to
the registration statement that is the subject of any such Losses.
(h) Claims. Each party indemnified under paragraph (f) or (g) of
this Section 5 shall, promptly after receipt of notice of the commencement of
any claim against such indemnified party in respect of which indemnity may be
sought hereunder, notify the indemnifying party in writing of the commencement
thereof. The failure of any indemnified party to so notify an indemnifying party
shall not relieve the indemnifying party from any liability in respect of such
action which it may have to such indemnified party on account of the indemnity
agreement contained in paragraph (f) or (g) of this Section 5, unless (and only
to the extent) the indemnifying party was prejudiced by such failure, and in no
event shall such failure relieve the indemnifying party from any other liability
which it may have to such indemnified party. In case any action in respect of
which indemnification may be sought hereunder shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it may desire, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under paragraph (f) or (g) of this Section 5 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation (unless such
indemnified party reasonably objects to such assumption on the grounds that
there may be defenses available to it which are different from or in addition to
those available to such indemnifying party in which event the indemnified party
shall be reimbursed by the indemnifying party for the reasonable expenses
incurred in connection with retaining separate legal counsel).
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(i) Contribution.
(i) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party or is insufficient to hold such indemnified
party harmless for any Losses in respect of which this Section 5 would otherwise
apply by its terms (other than by reason of exceptions provided in this Section
5), 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 offering to which such contribution relates as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, each party's relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
and the opportunity to correct and prevent any 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 investigation or proceeding, to the extent such party could have been
indemnified for such expenses if the indemnification provided for in this
Section 5 was available to such party.
(ii) The parties hereto agree that (A) it would not be just
and equitable if contribution pursuant to this Section 5(i) 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 the immediately preceding
paragraph and (B) the Stockholder will not be required to contribute any amount
in excess of the net proceeds received by such Stockholder from the sale of
Voting Securities registered and sold pursuant to the registration statement
that is the subject of any such Losses.
(j) Transaction Agreement. The Parties acknowledge and agree that
the indemnification provisions set forth in this Section 5 shall not be subject
in any manner to any indemnification provisions contained in the Transaction
Agreement.
(k) Legend on Certificates. The Stockholder hereby acknowledges and
agrees that the Voting Securities received or acquired by the Stockholder or any
Controlled Affiliate in accordance with this Agreement shall be subject to stop
transfer instructions and, if certificated, the certificates representing such
Voting Securities shall include the following legend, to the extent applicable:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF BY THE HOLDER EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OF
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1933, AS AMENDED, OR PURSUANT TO AN EXCEPTION FROM SUCH REGISTRATION.
In the event that shares of Voting Securities are legended, the Company agrees
to have such legend removed promptly following any sale or other disposition of
Voting Securities permitted by this Agreement.
(l) Certain Notifications. If at any time during the Term, the
Company no longer meets the S-3 Eligibility Requirements, it shall (i)
immediately notify the Stockholder of that fact and the reasons therefor and
(ii) use its commercially reasonable efforts to meet the S-3 Eligibility
Requirements as promptly as practicable thereafter.
6. Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefor each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
7. Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified and supplemented only by written agreement of the
Company and the Stockholder.
8. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be made in accordance with the provisions
of Section 12.3 of the Stock Purchase Agreement.
9. Severability. In the event that any provision(s) of this Agreement
shall be held illegal, invalid or unenforceable under applicable law, then such
illegality, invalidity or unenforceability shall not affect any other
provisions(s) hereof and this Agreement shall remain in force and be effectuated
as if such illegal, invalid or unenforceable provision is not part of this
Agreement; provided, however, (i) if the deletion of any provision of this
Agreement frustrates a material purpose or right of the Company or the
Stockholder, then such Company or Stockholder may terminate this Agreement
forthwith and without further liability or obligation and (ii) absent such
frustration and to the extent legally possible, the Company and the Stockholder
shall seek in good faith alternate provisions or arrangements to achieve the
same purposes as such provision.
10. Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors (including
any successor by merger, reorganization, consolidation or other business
combination) and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations
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hereunder shall be assigned by any party hereto without the prior written
consent of the other party.
11. Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware, without regard to its conflicts of law doctrine.
12. Jurisdiction and Venue. The Company and the Stockholder hereby agree
that any suit, claim, action or proceeding relating to or arising under this
Agreement shall be brought exclusively in a state court of Delaware (a "Delaware
Court"). Each of the Company and the Stockholder hereby consents to personal
jurisdiction in any such action brought in any such Delaware Court, consents to
service of process upon it and waives any objection it may have to venue in any
such Delaware Court or to any claim that any such Delaware Court is an
inconvenient forum. The Company and the Stockholder hereby waive trial by jury
in any suit, claim, action or proceeding in any court relating to or arising
under this Agreement. The Company and the Stockholder confirm that the foregoing
waiver is informed and freely made.
13. Counterparts. This Agreement may be executed simultaneously in
counterparts (including by facsimile), each of which shall be deemed an original
but all of which together shall constitute one and the same instrument.
14. Headings. The headings of the Sections of this Agreement are inserted
for convenience only and shall not constitute a part hereof or affect in any way
the meaning or interpretation of this Agreement.
15. Entire Agreement. This Agreement and the Transaction Agreement set
forth the entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein, and supersede all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereto.
16. Third Parties. Except as specifically set forth or referred to herein,
nothing herein expressed or implied is intended or shall be construed to confer
upon or give to any person or corporation, other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
FIDELITY NATIONAL FINANCIAL, INC. ALLTEL CORPORATION
By: By:
----------------------------- -------------------------
Name: Name:
Title: Title:
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