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EXHIBIT 10.3
FORM OF
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (the "Agreement") is made and entered into as
of November 17, 1997 between FIDELITY NATIONAL FINANCIAL, INC., a Delaware
corporation ("Parent") and the stockholder of GRANITE FINANCIAL, INC., a
Delaware corporation (the "Company"), identified on the signature page hereto
(the "Stockholder").
RECITALS
A. Concurrently with the execution of this Agreement, Parent and the
Company are entering into an Agreement and Plan of Merger (the "Merger
Agreement") which provides for the acquisition of the Company by Parent by means
of a merger (the "Merger") of a wholly-owned subsidiary of Parent ("Merger Sub")
with and into the Company (unless otherwise defined herein as the context
otherwise requires, capitalized terms shall have the respective meanings set
forth in the Merger Agreement);
B. As an inducement to Parent to enter into the Agreement, the
Stockholder is willing to enter into and be bound by this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. Ownership of Shares; Agreement to Retain Shares.
1.1 Ownership. The Stockholder represents and warrants that the
Stockholder is the record holder and beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
and has the right to vote and dispose of the number of shares of the outstanding
capital stock of the Company indicated on the signature page of this Agreement
(the "Shares").
1.2 Transfer and Encumbrance. The Stockholder agrees not to
transfer, sell, exchange, pledge or otherwise dispose of or encumber any of the
Shares or any New Shares (as defined in Section 1.3 below) or to make any offer
or agreement relating thereto, at any time prior to the Expiration Date. As used
herein, the term "Expiration Date" shall mean the earlier to occur of (i) the
Effective Time of the Merger, and (ii) such date and time as the Merger
Agreement shall be terminated pursuant to the terms thereof.
1.3 Additional Purchases. The Stockholder agrees that any shares
of capital stock of the Company that the Stockholder purchases or with respect
to which the Stockholder otherwise acquires beneficial ownership after the
execution of this Agreement and prior to the Expiration Date ("New Shares")
shall be subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares.
2. Agreement to Vote Shares. At every meeting of the stockholders of the
Company called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of the Company with respect to any of the following, the Stockholder shall vote,
or cause to be voted, the Shares and any New Shares: (i) in favor of approval of
the Merger Agreement and the Merger and any matter that could reasonably be
expected to facilitate the Merger; and (ii) against approval of any plan or
proposal made in opposition to or competition with consummation of the Merger
and against any
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merger, consolidation, sale of assets, reorganization or recapitalization, with
any party other than with Parent and its affiliates and against any liquidation
or winding up of the Company (each of the foregoing is referred to as an
"Opposing Proposal"). The Stockholder agrees not, directly or indirectly, to
solicit or encourage any offer from any party concerning the possible
disposition of all or any substantial portion of the business, assets or capital
stock of the Company; provided, that, if the Stockholder is a director of the
Company, the Stockholder may take any action in his or her role as a director of
the Company which is permitted under the Merger Agreement.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to Parent a proxy in the form attached hereto
as Exhibit A (the "Proxy"), which shall be irrevocable to the extent provided in
Section 212 of the Delaware General Corporation Law, with respect to the total
number of Shares and New Shares of capital stock of the Company beneficially
owned by the Stockholder set forth therein.
4. Representations, Warranties and Covenants of the Stockholder. The
Stockholder hereby represents, warrants and covenants to Parent as follows:
4.1 Ownership of Shares. The Stockholder (i) is the beneficial
owner of the Shares, which at the date hereof and at all times up until the
Expiration Date will be free and clear of any liens, claims, options, charges or
other encumbrances; (ii) does not beneficially own any shares of capital stock
of the Company other than the Shares (excluding shares as to which the
Stockholder currently disclaims beneficial ownership in accordance with
applicable law); and (iii) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
4.2 No Proxy Solicitations. The Stockholder will not, and will
not permit any entity under the Stockholder's control to: (i) solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act) with respect to an Opposing Proposal or
otherwise encourage or assist any party in taking or planning any action that
would compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Merger
Agreement; (ii) initiate a stockholders' vote or action by consent of
stockholders of the Company with respect to an Opposing Proposal; or (iii)
become members of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company with respect
to an Opposing Proposal. Notwithstanding the above, the Stockholder may take any
actions in their roles as directors of the Company permitted under the Merger
Agreement.
5. Affiliate Agreement; Additional Documents. The Stockholder hereby
covenants and agrees to execute and deliver the Affiliate Agreement described in
the Merger Agreement and any other documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the intent of this Agreement.
6. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
7. Miscellaneous.
7.1 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
7.2 Binding Effect and 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 successors and permitted
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assigns and, in the case of the Stockholder, his or her personal representatives
or estates; provided, however, that, except as otherwise specifically provided
herein, neither this Agreement nor any of the rights, interests or obligations
of the Stockholder may be assigned by the Stockholder without the prior written
consent of Parent.
7.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the party against whom enforcement
is sought.
7.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
7.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to Parent: Fidelity National Financial, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Executive Vice
President
With a copy to its General Counsel at the
same address
With a copy to: Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: C. Xxxxx Xxxxxxx, Esq.
If to the Stockholder: To the addresses for notice set forth on the
last page hereof.
With a copy to:
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or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
7.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware.
7.7 Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
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7.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
7.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Stockholder Agreement
to be duly executed on the date and year first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By:
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Name:
Title:
STOCKHOLDER:
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Stockholder's Address for Notice:
Shares beneficially owned:
Shares of Common Stock:
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of ___________ , a Delaware corporation (the
"Company"), hereby appoints the members of the Board of Directors of Fidelity
National Financial, Inc., a Delaware corporation ("Parent"), and each of them,
as the sole and exclusive attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to the extent of the undersigned's
rights with respect to all of the shares of capital stock of the Company
beneficially owned by the undersigned, which shares are listed below (the
"Shares"), and any and all other shares or securities issued or issuable in
respect thereof on or after the date hereof, until such time as that certain
Agreement and Plan of Merger, dated as of November 17, 1997 (the "Merger
Agreement"), among Parent and the Company shall be terminated in accordance with
its terms or the Effective Time (as defined in the Merger Agreement) occurs.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked and
no subsequent proxies will be given.
This proxy is irrevocable, to the extent permitted by Section 212 of the
Delaware General Corporation Law (the "DGCL")), is granted pursuant to the
Stockholder Agreement, dated as of November 17, 1997, between Parent and the
undersigned stockholder (the "Stockholder Agreement"), and is granted in
consideration of Parent entering into the Merger Agreement. The attorneys and
proxies named above, and each of them, will be empowered at any time prior to
termination of the Merger Agreement to exercise all voting and other rights
(including, without limitation, the power to execute and deliver written
consents pursuant to Section 228 of the DGCL with respect to the Shares) of the
undersigned at every annual, special or adjourned meeting of stockholders of the
Company, and in every written consent in lieu of such a meeting, or otherwise:
(a) in favor of approval of the Merger and the Merger Agreement and any matter
that could reasonably be expected to facilitate the Merger, and (b) against any
proposal made in opposition to or competition with the consummation of the
Merger and against any merger, consolidation, sale of assets, reorganization or
recapitalization of the Company with any party other than Parent and its
affiliates and against any liquidation or winding up of the Company. The
attorneys and proxies named above may not exercise this Proxy to vote the Shares
subject hereto on any other matter except as provided in clauses (a) and (b)
above.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the extent permitted by Section 212 of the
DGCL).
Shares beneficially owned:
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Print Name of Stockholder
Shares of Common Stock:
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Dated: , 1997
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Signature of Stockholder (or authorized
representative, agent or partner)
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