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EXHIBIT 2
VOTING AGREEMENT
BY AND AMONG
THE FIRST AMERICAN FINANCIAL CORPORATION,
XXXX X. XXXXXXX
AND
XXXXX X. XXXX
Dated as of November 17, 1998
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of November 17, 1998 (this "Agreement"), by
and among The First American Financial Corporation, a California corporation
("FAFCO"), Xxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxx X. Xxxx ("Xxxx"; each of Xxxx
and Speizer, a "Shareholder," and collectively, the "Shareholders"). Capitalized
terms used, but not otherwise defined, herein shall have the meanings given them
in the Merger Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this Agreement
FAFCO, Pea Soup Acquisition Corp., a Delaware corporation and wholly-owned
Subsidiary of FAFCO ("FAFCOSUB"), and National Information Group, a California
corporation (the "Company"), have entered into that certain Agreement and Plan
of Merger (the "Merger Agreement") pursuant to which, at the Effective Time,
FAFCOSUB will merge with and into the Company, with the Company continuing as
the surviving corporation (the "Merger");
WHEREAS, as a condition to, and in consideration for, FAFCO's
willingness to enter into the Merger Agreement and to consummate the
transactions contemplated thereby, FAFCO has required that the Shareholders
enter into this Agreement;
WHEREAS, each of the Shareholders, owns the number of Company Common
Shares listed opposite his signature below (the "Shares");
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Agreements.
a. Voting Agreement. Each Shareholder shall, as to himself, with
respect to any meeting of the holders of Company Common Shares
(including, without limitation, the Company Shareholder Meeting),
however such meeting is called and regardless of whether such meeting is
a special or annual meeting of the shareholders of the Company (a
"Meeting of Company Shareholders"), or in connection with any written
consent of the shareholders of the Company (a "Written Consent"), shall
take such actions as are necessary (A) to vote or cause to be voted all
of such Shareholder's Shares in favor of the Merger, the execution and
delivery by the Company of the Merger Agreement and the approval of the
terms thereof and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
thereof
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and hereof (collectively, the "Merger Proposal") and (B) not to vote or
cause or permit to be voted all of such Shareholder's Shares in favor of
or against any Takeover Proposal or any other action or agreement that
would in any manner impede, frustrate, prevent or nullify any of the
transactions contemplated by the Merger Agreement, including the Merger,
or result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement
or which would result in any of the conditions to the Company's or
FAFCO's obligations under the Merger Agreement not being fulfilled.
b. No Inconsistent Arrangements. Each Shareholder hereby covenants and
agrees, severally and not jointly and solely as to himself, that he
shall not (i) transfer (which term shall include, without limitation,
any sale, gift, pledge or other disposition), or consent to any transfer
of, any or all of his Shares, or any interest therein if such transfer
would result in the Shareholder no longer having the power to vote or
cause to be voted his Shares on the Merger Proposal (pursuant to Section
1(a) hereof), (ii) enter into any contract, option or other agreement or
understanding with respect to any such transfer of any or all of his
Shares, or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to his
Shares, (iv) deposit his Shares into a voting trust or enter into a
voting agreement or arrangement with respect to such Shares, other than
pursuant to this Agreement, or (v) take any other action that would in
any way restrict, limit or interfere with the performance of his
obligations hereunder or the transactions contemplated hereby or by the
Merger Agreement. Notwithstanding the foregoing, the parties acknowledge
and agree that (a) Xx. Xxxxxxx has pledged (i) 300,000 Shares to a stock
brokerage firm as collateral for a loan by that stock brokerage firm to
Xx. Xxxxxxx and (ii) 1,224,295 Shares to an escrow agent as security for
payment of a note issued by Xx. Xxxxxxx in connection with the
acquisition of certain of the Shares in 1996 and (b) Xx. Xxxx has
pledged 3,000 shares to a stock brokerage firm as collateral for a loan
by that stock brokerage firm to Xx. Xxxx. The Shares pledged by Xx.
Xxxxxxx and Xx. Xxxx are collectively referred to as the Pledged Shares.
Such pledges of the Pledged Shares include, without limitation, powers
of sale of the Pledged Shares in the event of certain defaults.
Notwithstanding anything to the contrary contained herein, the parties
agree that Xx. Xxxxxxx and Xx. Xxxx may cause all or part of the Pledged
Shares to be released from the existing pledges and pledged to another
lender in connection with a refinancing of the existing loan
arrangements; provided, however, that the terms of any pledge of the
Pledged Shares in connection with any such refinancing do not contain
more burdensome and restrictive provisions relating to default.
c. No Solicitation. Each Shareholder hereby agrees, in his capacity as
a shareholder of the Company, that the Shareholder shall not (and each
Shareholder
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shall use reasonable efforts to cause his representatives and agents,
including, but not limited to, investment bankers, attorneys and
accountants, not to), directly or indirectly, encourage, solicit,
participate in or initiate discussions or negotiations with, or provide
any information to, any Person (other than FAFCO, any of its affiliates
or representatives) concerning any Takeover Proposal; provided, however,
that nothing contained in this Section 1(c) shall restrict any
Shareholder from taking any action in his capacity as an officer and/or
director of the Company which is permitted to be taken pursuant to
Section 5.3 of the Merger Agreement.
d. Reasonable Best Efforts. Subject to the terms and conditions of
this Agreement, each of the parties hereto agrees to use its or his
reasonable best efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement and the Merger
Agreement; provided, however, that nothing contained in this Section
1(d) shall restrict any Shareholder from taking any action in his or her
capacity as an officer and/or director of the Company which is permitted
to be taken pursuant to Section 5.3 of the Merger Agreement.
2. Representations and Warranties.
a. Each Shareholder hereby represents and warrants, severally and not
jointly and solely as to himself, to FAFCO as follows:
i. Ownership of Securities. On the date hereof, the
Shareholder is the beneficial owner of the Shares as set forth
opposite his signature hereto. Except for the rights granted
pledgees and agents of pledgees of the Pledged Shares in
connection with defaults under the loan agreements described in
Section 1 (b) of this Agreement and the exercise of remedies in
connection therewith, the Shareholder has the sole power to vote
with respect to the matters set forth in Section 1 hereof, sole
power of disposition, sole power of conversion, sole power (if
any) to demand appraisal rights and sole power to agree to all
of the matters set forth in this Agreement, in each case with
respect to all of the Shares with no limitations, qualifications
or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement. As of the date hereof, no
default exists under the loan arrangements and pledge
arrangements described in Section 1(b) of this Agreement, nor
has any lender or pledgee or agent of any pledgee asserted any
claim of default or attempted to exercise any remedies with
respect to Pledged Shares.
ii. Power; Binding Agreement. Each Shareholder has the power
and authority to enter into and perform all of his obligations
under this Agreement. The execution, delivery and performance of
this Agreement by the Shareholder will not violate any agreement
to which the
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Shareholder is a party including, without limitation, any voting
agreement, proxy arrangement, pledge agreement, shareholders
agreement or voting trust. This Agreement has been duly and
validly executed and delivered by the Shareholder and
constitutes a valid and binding agreement of the Shareholder,
enforceable against the Shareholder in accordance with its
terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the
Shareholder is a trustee whose consent is required for the
execution and delivery of this Agreement or the compliance by
the Shareholder with the terms hereof.
iii. No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any Governmental Entity is required for
the execution of this Agreement by the Shareholder and the
consummation by the Shareholder of the transactions contemplated
hereby, and none of the execution and delivery of this Agreement
by the Shareholder, the consummation by the Shareholder of the
transactions contemplated hereby or compliance by the
Shareholder with any of the provisions hereof shall (A) conflict
with or result in any breach of any organizational documents
applicable to the Shareholder, (B) result in a violation or
breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right
of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which the
Shareholder is a party or by which the Shareholder or any of his
properties or assets may be bound or (C) violate any order,
writ, injunction, decree, judgment, order, statute, arbitration
award, rule or regulation applicable to the Shareholder or any
of his properties or assets.
b. FAFCO hereby represents and warrants to the Shareholders, and to
each of them, as follows:
i. Power; Binding Agreement. FAFCO has the corporate power and
authority to enter into and perform all of its obligations under
this Agreement. The execution, delivery and performance of this
Agreement by FAFCO will not violate any material agreement to
which FAFCO is a party. This Agreement has been duly and validly
executed and delivered by FAFCO and constitutes a valid and
binding agreement of FAFCO, enforceable against FAFCO in
accordance with its terms.
ii. No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any Governmental Entity is required for
the execution of
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this Agreement by FAFCO and the consummation by FAFCO of the
transactions contemplated hereby, and none of the execution and delivery
of this Agreement by FAFCO, the consummation by FAFCO of the
transactions contemplated hereby or compliance by FAFCO with any of the
provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to FAFCO, (B) result in a violation
or breach of, or constitute (with or without notice or lapse of time or
both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any material note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind
to which FAFCO is a party or by which FAFCO or any of its properties or
assets may be bound or (C) violate any order, writ, injunction, decree,
judgment, order, statute, arbitration award, rule or regulation
applicable to FAFCO or any of its properties or assets.
3. Stop Transfer. No Shareholder shall request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any of his Shares, unless such transfer is made in compliance with
this Agreement. In the event of any dividend or distribution, or any change in
the capital structure of the Company by reason of any non-cash dividend,
split-up, recapitalization, combination, exchange of securities or the like, the
term "Shares" shall refer to and include each Shareholder's Shares as well as
all such dividends and distributions of securities and any securities into which
or for which any or all such Shares may be changed, exchanged or converted.
4. Restriction on Sales of Securities. From the date that is 30 days prior to
the Effective Time, until after such time as results covering at least 30 days
of post-Merger combined operations of the Company and FAFCO have been published
by FAFCO, in the form of a quarterly earnings report, an effective registration
statement filed with the SEC, a report to the SEC on Forms 10-K, 10-Q or 8-K, or
any other public filing or announcement which includes such combined results of
operations, no Shareholder will sell, transfer or otherwise dispose of any of
his Shares, any FAFCO Common Shares he receives in the Merger or any other FAFCO
Common Shares or FAFCO preferred shares he holds.
5. Termination. This Agreement and the covenants, representations and warranties
and agreements contained herein or granted pursuant hereto shall terminate upon
the earlier to occur of (i) the termination of the Merger Agreement in
accordance with Section 9 thereof or (ii) the consummation of the transactions
contemplated by the Merger Agreement, provided that the provisions of Sections 4
and 5 hereof shall survive the consummation of such transactions in accordance
with their terms (but shall not survive the termination of the Merger
Agreement).
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6. Miscellaneous.
a. Specific Performance. Each party hereto recognizes and agrees that
if for any reason any of the provisions of this Agreement are not
performed by any other party in accordance with their specific terms or
are otherwise breached, immediate and irreparable harm or injury would
be caused to non-breaching parties for which money damages would not be
an adequate remedy. Accordingly, the parties agree that, in addition to
any other available remedies, the non-breaching party shall be entitled
to seek an injunction restraining any violation or threatened violation
of the provisions of this Agreement.
b. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. Without limiting the foregoing,
with respect to any provision of this Agreement, if it is determined by
a court of competent jurisdiction to be excessive as to duration or
scope, it is the parties' intention that such provision nevertheless be
enforced to the fullest extent which it may be enforced.
c. Attorneys' Fees. If any action at law or equity, including an
action for declaratory relief, is brought to enforce or interpret any
provision of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees and expenses from the other party,
which fees and expenses shall be in addition to any other relief which
may be awarded.
d. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, REGARDLESS OF THE
LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
e. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written
and oral, among the parties or any of them with respect to the subject
matter hereof.
f. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in
person, by facsimile (which is confirmed), or by registered or certified
mail (postage prepaid, return receipt requested):
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if to Speizer, to:
Xxxx X. Xxxxxxx
In care of National Information Group
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
Facsimile: 650-827-0521
if to Xxxx, to:
Xxxxx X. Xxxx
000 Xxxxx Xxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Facsimile: 000-000-0000
if to FAFCO, to:
The First American Financial Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: President
Facsimile: 000-000-0000
with a copy to:
White & Case LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile: 000-000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
g. Descriptive Headings; Interpretation. The descriptive headings
herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of
this Agreement.
h. Assignment; Binding Agreement. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any
party hereto without the prior written consent of the other parties
hereto.
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i. Amendment, Modification and Waiver. This Agreement may not be
amended, modified or waived except by an instrument or instruments in
writing signed and delivered on behalf of the party hereto against whom
such amendment, modification or waiver is sought to be entered.
j. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, FAFCO has caused its corporate name to be hereunto
subscribed by its officer thereunto duly authorized and each of Speizer and Xxxx
has signed this Agreement, all as of the day and year first above written.
THE FIRST AMERICAN FINANCIAL
CORPORATION
By: ______________________________
Name:
Xxxxxx X. Xxxxxxx
Title: President
Shares:1,542,909 __________________________________
Xxxx X. Xxxxxxx
Shares: 3,000 __________________________________
Xxxxx X. Xxxx
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