EXHIBIT (d)(2)
AGREEMENT REGARDING OUTSTANDING OPTIONS AND WARRANTS
THIS AGREEMENT REGARDING OUTSTANDING OPTIONS AND WARRANTS (this
"Agreement") is made and entered into as of April 29, 2002, by and between Micro
General Corporation, a Delaware corporation (the "Company"), and the individual
or entity listed on the signature page hereto (the "Optionee").
Recitals
WHEREAS, the Optionee is, as of the date hereof, the beneficial owner of
options or warrants (either, "Options") to purchase common shares, par value
$0.05 per share ("Company Common Shares"), of the Company;
WHEREAS, Fidelity National Information Solutions, Inc., a Delaware
corporation (the "Buyer") intends to commence an exchange offer (the "Offer") to
acquire all of the outstanding Company Common Shares in exchange for shares of
Buyer common stock, 0.001 par value ("Buyer Common Shares") and subsequent to
the closing of the Offer to consummate a post-closing reorganization to be
accomplished upon the terms and subject to the conditions to be set forth in a
Registration Statement on Form S-4 to be filed by the Buyer with the Securities
and Exchange Commission;
WHEREAS, in the Offer the Buyer will offer 0.696 shares of Buyer Common
Stock for each full Common Share (the "Exchange Ratio");
WHEREAS, the Board of Directors of the Company has voted to recommend the
Offer to the Company's stockholders and to otherwise support the Offer;
WHEREAS, the Optionee desires to increase the exercise price of the
Options beneficially owned by it in order to align its interests in the success
of the Buyer with that of the other stockholders in the Buyer following the
closing of the Offer and the subsequent reorganization;
WHEREAS, as a condition to the willingness of the Company to recommend in
favor of the Offer to its stockholders, the Optionee has agreed (solely in his,
her or its capacity as an optionee or warrantholder of the Company) to enter
into this Agreement;
NOW, THEREFORE, in consideration of the recommendation in favor of the
Offer by the Company and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
Agreement
1. Certain Definitions. For purposes of this Agreement:
"Exercise Price" means the purchase price per Company Common Share
payable upon exercise of an Option.
"Termination Date" shall mean the earliest to occur of (i) the
breach by the Company of the covenant contained in Section 4 below or (ii) the
announcement by the Buyer of the valid termination of the Offer.
"Transfer" The Optionee shall be deemed to have effected a Transfer
of Options if the Optionee directly or indirectly (i) sells, pledges, encumbers,
grants an option with respect to, transfers or otherwise disposes of such
Options or any interest therein, or (ii) enters into an agreement or commitment
providing for the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such Options or any interest therein.
2. Representations and Warranties of the Optionee. The Optionee hereby
represents, warrants and covenants to the Company that the Optionee (i) received
its Options pursuant to the grants, agreements, warrants or other arrangements
listed on Schedule A attached hereto (the "Option Agreements"); (ii) is the
beneficial owner of such Options, free and clear of any pledges, options, rights
of first refusal, co-sale rights, attachments or other encumbrances; (iii) has
full power and authority to make, enter into and carry out the terms of this
Agreement; and (iv) the execution, delivery and performance of this Agreement by
the Optionee and the consummation of the transactions contemplated hereby, will
not (x) require the consent, waiver, approval, or authorization of any
governmental authority or any other person or entity; or (y) violate, conflict
with, result in a breach of or the acceleration of any obligation under, or
constitute a default (or an event which with notice or the lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of the Optionee pursuant to any
provision of any indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, ordinance, regulation or decree to which the
Optionee is subject or by which the Optionee or any of the Optionee's property
or assets is bound.
3. Modification of Terms. The Company and the Optionee hereby agree to
amend each Option Agreement to provide that (i) the Exercise Price of each
Option beneficially owned by Optionee shall be increased by Two and 26/100ths
Dollars ($2.26); and (ii) notwithstanding any provision to the contrary
contained in any Option Agreement neither the Offer nor the subsequent
reorganization shall cause the accelerated vesting of any such Option.
4. Options in Buyer. The Company covenants that as a result of the Offer
and the subsequent reorganization of the Company, the Options shall be converted
into options (each, a "Buyer Option") to acquire, on the same terms and
conditions as are currently applicable under such Option, that number of Buyer
Common Shares determined by multiplying the number of Company Common Shares
subject to such Option by the Exchange Ratio, with any fractional shares of
Buyer Common Shares resulting from such calculation being rounded down to the
nearest whole share, at a price per share (rounded up to the nearest whole cent)
equal to (x) the aggregate exercise price for the Company Common Shares covered
by such Option (as adjusted pursuant to this Agreement) divided by (y) the
number of full Buyer Common Shares covered by such Buyer Option in accordance
with the foregoing.
5. Transferee of Options to be Bound by this Agreement. The Optionee
hereby agrees that, at all times during the period from the date of this
Agreement until the Termination Date, the Optionee shall not cause or permit any
Transfer of any of the Options to be effected, or discuss, negotiate or make any
offer regarding any Transfer of any of the Options, unless each person to
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which any such Options, or any interest therein, is or may be Transferred shall
have (i) executed a counterpart of this Agreement; and (ii) agreed in writing to
hold such Options, or such interest therein, subject to all of the terms and
conditions set forth in this Agreement.
6. Certain Events. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of the Company affecting the Options or other securities or rights of
the Company by any Optionee, the number of Options shall be adjusted
appropriately, and this Agreement and the rights and obligations hereunder shall
attach to any additional Options or other securities or rights of the Company
issued to or acquired by the Optionee.
7. Further Assurances. The Optionee hereby covenants and agrees to, upon
the request of the Buyer, execute and deliver any additional documents and take
such further actions as may be deemed by the Buyer to be necessary or desirable
to carry out the provisions of this Agreement.
8. Termination. Except as otherwise provided in this Agreement, this
Agreement, and all rights and obligations of the parties hereunder, shall
terminate and have no further force or effect immediately upon the Termination
Date; provided, however, that Sections 9 and 10 shall survive any termination of
this Agreement.
9. Expenses. All fees and expenses incurred by any one party hereto shall
be borne by the party incurring such fees and expenses; provided, however, that
if the Company institutes any action against the Optionee to enforce the terms
of this Agreement, the Optionee shall pay reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and costs, incurred by
the Company in connection with such action, provided that the Company is
successful in its action against the Optionee.
10. Miscellaneous.
(a) 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.
(b) 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 assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
(c) 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 parties hereto.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Buyer shall be irreparably harmed and that there shall be
no adequate remedy at law for a violation of any of the covenants or agreements
of Optionee set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to the Buyer upon any such violation,
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the Buyer shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to the
Buyer at law or in equity.
(e) Third Party Beneficiary. Buyer shall have the rights of a third
party beneficiary of this Agreement.
(f) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to the Company: Micro General Corporation
0000 X. Xxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy to: Fidelity National Information Solutions, Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to the Optionee: To the address for notice set forth on the signature
page hereof.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without giving effect to
the conflicts of law principles thereof. The Optionee hereby irrevocably
consents to the exclusive jurisdiction and venue of any court within the State
of Delaware in connection with any matter based upon or arising out of this
Agreement of the matters contemplated herein, agrees that process may be served
upon the Optionee in any manner authorized by the laws of the State of Delaware
for such persons and waives any covenants not to assert or plead any objection
which the Optionee might otherwise have to such jurisdiction, venue and such
process.
(h) Entire Agreement. This Agreement contains 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.
(i) Effect of Headings. The section headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed by facsimile and in
several counterparts, each of which shall be an original, but all of which
together shall constitute one and the same agreement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, each of the Buyer and the Optionee have caused this
Agreement to be duly executed and delivered as of the date first written above.
MICRO GENERAL CORPORATION
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Name:
Title:
OPTIONEE
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Name:
Title:
Address:
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Telephone:
Facsimile No.:
[SIGNATURE PAGE TO AGREEMENT REGARDING
OUTSTANDING OPTIONS AND WARRANTS]
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Schedule A
Option Agreements
Title of Option Agreement Date of Option Agreement No. of Options Issued
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TOTAL OPTIONS AND
WARRANTS:
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