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EXHIBIT 10.43
STOCK PURCHASE AGREEMENT
DATED AS OF
AUGUST 18, 1995
BY AND AMONG
XXXXXXX X. XXXXXXXXXX, XXXXXXXX X. XXXXXX AND
SOUTHERN CALIFORNIA TITLE COMPANY
AND
FIDELITY NATIONAL FINANCIAL, INC.
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STOCK PURCHASE AGREEMENT
DATED AS OF
AUGUST 18, 1995
BY AND AMONG
XXXXXXX X. XXXXXXXXXX, XXXXXXXX X. XXXXXX AND
SOUTHERN CALIFORNIA TITLE COMPANY
AND
FIDELITY NATIONAL FINANCIAL, INC.
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is dated as of this
18th day of August, 1995, by and among XXXXXXX X. XXXXXXXXXX and XXXXXXXX X.
XXXXXX, ("Selling Shareholders"), SOUTHERN CALIFORNIA TITLE COMPANY, a
California corporation ("SCTC"), and FIDELITY NATIONAL FINANCIAL, INC., a
Delaware corporation ("Fidelity").
RECITALS
A. SCTC currently has authorized for issuance 500,000 shares of
common stock of which 100 shares are issued and outstanding. Selling
Shareholders own and otherwise hold all 100 shares of the issued and outstanding
common stock (the "SCTC Stock") in the amounts set forth on SCHEDULE A-1.
B. The parties hereto have determined that it is in the best
interests of SCTC, its Selling Shareholders and Fidelity that Fidelity acquire
the SCTC Stock.
C. Selling Shareholders desires to sell to Fidelity and Fidelity
desires to purchase from Selling Shareholders the SCTC Stock in accordance with
the terms and conditions set forth herein.
NOW, THEREFORE, with reference to the foregoing and in consideration of
and subject to the conditions, representations, warranties, agreements and
covenants contained in this Agreement, Selling Shareholders, SCTC and Fidelity,
intending to be legally bound hereby, agree as follows:
AGREEMENTS
SECTION 1
PURCHASE PRICE AND PAYMENT TERMS
1.01 Purchase of SCTC Stock from Selling Shareholders. Subject to and
upon the terms and conditions set forth in this Agreement, Selling Shareholders
will sell, transfer, convey, assign and deliver to Fidelity, and Fidelity will
purchase at the Closing hereunder, all shares of the SCTC Stock set forth
opposite the name of Selling Shareholders on SCHEDULE A-1 for the consideration
set forth in Section 1.02 hereof. Transfer of the SCTC Stock shall entitle
Fidelity, through the ownership of the SCTC Stock, to 100% of the business,
assets, title plants, properties, goodwill and rights of SCTC as a going
concern, of every nature, kind and description, tangible and intangible,
wheresoever located and whether or not carried or reflected on
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the books and records of SCTC, including, without limitation, the assets
reflected on the most recent SCTC Balance Sheet referred to in Section 3.07
hereof (the "Most Recent Balance Sheet"), with only such dispositions of such
assets reflected on the Balance Sheet as shall have occurred in the ordinary
course of SCTC's business between the date hereof and the Closing and which are
permitted by the terms hereof.
1.02 Purchase Price.
(a) In consideration of the sale, transfer, conveyance,
assignment and delivery of 100% of the outstanding shares of common stock of
SCTC by Selling Shareholders to Fidelity, and in reliance upon the
representations and warranties made herein by Selling Shareholders and SCTC,
Fidelity will, in full payment therefor, pay to Selling Shareholders at the
Closing the aggregate sum of One Million Nine Hundred Twenty Thousand Two
Hundred Forty-One and 10/100 ($1,920,241.10) ("Purchase Price") by wire
transfer of funds as provided in SCHEDULE A-2.
(b) In the event that between the date hereof and the Closing,
SCTC or Selling Shareholders shall cause SCTC to make any payment or payments to
any person, firm, or entity in respect of any matter (including without
limitation, any and all expenses in respect of this Agreement) other than in the
ordinary course of the business of SCTC ("Business") and permitted hereunder,
the Purchase Price shall be reduced by an amount equal to the aggregate of all
such payments.
SECTION 2
THE CLOSING
2.01 Closing Date. The Closing shall take place at 1:00 p.m., local
time, on the 18th day of August, 1995, at the offices of Fidelity, 00000 Xxx
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, or such other time and place
as the parties may agree upon. The day on which the Closing actually takes place
is herein sometimes referred to as the Closing Date. In the event either of the
parties is entitled not to close on the scheduled date because a condition to
the Closing set forth herein has not been met (or waived by the party or parties
entitled to waive it), such party may postpone the Closing from time to time, by
giving written notice to the other party, until the condition has been met
(which all parties will use their best efforts to cause to happen), but in no
event to a date later than August 21, 1995, unless otherwise agreed to by the
parties.
2.02 Delivery by Selling Shareholders. Provided that all conditions to
the Closing set forth in Sections 8 and 9 hereof have been satisfied or waived,
at the Closing, Selling
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Shareholders shall deliver to Fidelity certificates evidencing the SCTC Stock
endorsed for transfer to Fidelity.
2.03 Payment by Fidelity. Provided that all conditions to the Closing
set forth in Sections 8 and 9 have been satisfied or waived, at the Closing,
Fidelity shall pay to Selling Shareholders an amount equal to the Purchase Price
by delivery of a wire transfer of funds in such amount and to such accounts as
provided in SCHEDULE A-2.
SECTION 3
REPRESENTATIONS AND WARRANTIES
OF SCTC AND SELLING SHAREHOLDERS
SCTC and the Selling Shareholders, jointly and severally, hereby
represent and warrant, as of the date hereof and as of the Closing Date to
Fidelity, with such exceptions, modifications, descriptions and disclosures as
are set forth in the Schedules attached hereto, as set forth below:
3.01 Validity. This Agreement has been, and the documents to be
delivered at Closing will be, duly executed and delivered and constitute lawful,
valid and legally binding obligations of SCTC and the Selling Shareholders,
enforceable in accordance with their respective terms. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby will not result in the creation of any lien, charge or encumbrance of any
kind or the acceleration of any indebtedness or other obligation of the Business
and are not prohibited by, do not violate or conflict with any provision of, and
do not constitute a default under or a breach of (a) the charter or bylaws of
SCTC, (b) any contract, agreement, permit, license or other instrument to which
SCTC or the Selling Shareholders is a party or by which SCTC or the Selling
Shareholders, or any of their respective assets, is bound, (c) any order, writ,
injunction, decree or judgment of any court or governmental agency, or (d) any
law, rule or regulation applicable to SCTC or the Selling Shareholders and will
not restrict the ability of Fidelity to carry on the Business. No approval,
authorization, consent or other order or action of or filing with any person,
including any court, administrative agency or other governmental authority, is
required for the execution and delivery by SCTC of this Agreement or the
consummation by SCTC and the Selling Shareholders of the transactions
contemplated hereby, except for filings or consents required pursuant to (i) the
Worker Adjustment and Restraining Notification Act of 1988 and the rules and
regulations thereunder ("WARN Act"); (ii) filings with state insurance
regulatory agencies; (iii) applicable federal, state or local laws and
regulations relating to the underwriting and sale of title insurance; and (iv)
requirements of applicable federal and state securities laws.
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3.02 Organization, Etc. SCTC is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and has
no active subsidiaries at the date hereof, except as set forth in SCHEDULE C-2
(the "SCTC Subsidiaries"). Each of the SCTC Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation as identified in SCHEDULE C-2. Except as disclosed to Fidelity on
or before the date this Agreement is executed and delivered, SCTC and the SCTC
Subsidiaries have corporate power to own or lease their respective properties
and to carry on their respective businesses as and in the places where such
properties are now owned, leased or operated, and such businesses are now
conducted, and have complied in all material respects with all material federal,
state and local laws with respect to their operation and the conduct of their
businesses. SCTC and each of the SCTC Subsidiaries are duly qualified and
licensed and in good standing as foreign corporations, or are licensed to do
business as insurers, in each jurisdiction as set forth in SCHEDULE C-2,
constituting each jurisdiction in which such qualification and licensing is
required except for jurisdictions in which the failure to so qualify or be
licensed would not have a material adverse effect on the financial condition or
business of SCTC or the SCTC Subsidiaries taken as a whole. Copies of the
Certificate of Incorporation and all amendments thereto, bylaws as amended and
currently in force, stock records and corporate minutes and records of SCTC and
each of the SCTC Subsidiaries heretofore made available to Fidelity are true,
complete and correct at the date hereof.
3.03 Subsidiaries. Except as disclosed in SCHEDULE C-3, SCTC does not
own stock or have any other equity interest in, and does not control, directly
or indirectly, any corporation, association, partnership, joint venture or other
entity and has not had such an ownership or control relationship with any such
entity. The capitalization, including authorized capital stock and long-term
debt, of each SCTC Subsidiary is accurately described in SCHEDULE C-3. All
outstanding shares of capital stock of each SCTC Subsidiary (the "Shares") are
duly authorized, validly issued, fully paid and nonassessable, were not issued
in violation of any preemptive or other right of any person to acquire
securities of any SCTC Subsidiary and constitute in the aggregate all the issued
and outstanding shares of all classes of capital stock of the SCTC Subsidiaries.
There is no outstanding subscription, option, convertible security, preemptive
right, warrant, call or agreement (other than this Agreement) relating to the
Shares or other obligations of any SCTC Subsidiary to issue any shares of
capital stock. SCTC has good, marketable and indefeasible title to all of the
Shares and the absolute right to sell, assign, transfer and deliver the same to
Fidelity, free and clear of all claims, security interests, liens, pledges,
charges, escrows, options, proxies, rights of first refusal, preemptive rights,
mortgages, hypothecations, prior assignments, title
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retention agreements, indentures, security agreements or any other encumbrance
or restriction of any kind.
3.04 Capital Stock, Stock Options.
(a) SCTC has authorized capital stock consisting of 500,000
shares of common stock, of which 100 shares are issued and outstanding. All of
the issued and outstanding shares of SCTC Stock are duly authorized and validly
issued, fully paid and nonassessable, were offered, issued and sold in
accordance with applicable federal and state securities laws, and there are no
preemptive rights in respect thereof. There are no other classes of stock of
SCTC other than the common stock set forth above and there are no outstanding
options, warrants or other instruments which would entitle the holders thereof
to acquire any common stock or other class of stock in SCTC.
(b) Except as set forth in SCHEDULE C-4, there are no outstanding
options, warrants, rights, calls, commitments, conversion rights, plans or other
agreements of any character providing for the purchase or issuance of any SCTC
securities of any description.
(c) As of the Closing Date, all necessary filings will have been
made with and all necessary approvals will have been obtained from federal and
state securities regulatory authorities. All applicable stock transfer or
similar fees and taxes will have been paid by or on behalf of SCTC and the
Selling Shareholders.
(d) Except as set forth in SCHEDULE C-4, the Selling Shareholders
have good, marketable and indefeasible title to all of the SCTC Shares and the
absolute right to sell, assign, transfer and deliver the same to Fidelity, free
and clear of all claims, security interests, liens, pledges, charges, escrows,
options, proxies, rights of first refusal, preemptive rights, mortgages,
hypothecations, prior assignments, title retention agreements, indentures,
security agreements or any other encumbrance or restriction of any kind.
3.05 Corporate Authority. SCTC has full legal right and corporate
power and authority, without the consent of any other person, to make, execute,
deliver and perform this Agreement and the transactions contemplated hereby, and
the execution, delivery and performance of this Agreement by SCTC and the
Selling Shareholders has been duly authorized by all necessary corporate action
of SCTC and the Selling Shareholders, subject to compliance with applicable
regulatory requirements.
3.06 No Default Resulting from Agreement. Except as set forth in
SCHEDULE C-6, neither the execution and delivery of this Agreement nor the
performance by SCTC in compliance with its terms will result in any breach of
the terms and conditions of,
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or constitute a default under, the Certificate of Incorporation or bylaws of
SCTC or any of the SCTC Subsidiaries, or any agreement, instrument, undertaking,
judgment, decree, governmental order or other restriction or obligation to which
SCTC or any of the SCTC Subsidiaries is a party or by which they or any of their
properties or assets may be bound or affected.
3.07 Financial Statements. Attached as SCHEDULE C-7(1) are true,
correct and complete copies of the financial statements of SCTC, including the
balance sheets of SCTC as at June 30, 1995 and December 31, 1994, 1993 and 1992
(the "SCTC Balance Sheets"), and the statements of Income, Stockholders' Equity
and Changes in Financial Position for the three fiscal years then ended,
together with the reports thereon of Xxxxxx and Co., independent auditors (such
unaudited and audited financial statements, including the notes and schedules
thereto, if any, are hereinafter referred to as the "SCTC Financial
Statements"). Except as set forth in SCHEDULE C-7(2), the SCTC Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis and the SCTC Financial Statements
present fairly the assets, liabilities, stockholders' equity and financial
condition of SCTC and the SCTC Subsidiaries as at the dates indicated and the
results of their operations and changes in financial position for the periods
then ended.
3.08 Tax Status. All federal, state and local tax and information
returns required to have been filed prior to the date hereof by SCTC have been
duly and timely (including any extensions) filed and each such return correctly
reflects the income, franchise, premium and other tax liability and all other
information regarding SCTC and the SCTC Subsidiaries required to be reported
thereon. All taxes, penalties, interest and related charges and fees related to
income of SCTC or any SCTC Subsidiary have been paid, to the extent such
payments are required prior to and as of the date hereof, and neither SCTC nor
any SCTC Subsidiary has any deficiency with respect to any tax period or any
liability with respect to taxes or penalties and interest thereon, or related
charges and fees, whether or not assessed, which are not adequately provided for
in the tax accrual reserves in the SCTC Financial Statements, except current and
deferred taxes pertaining to income earned after the date of the most recent
SCTC Financial Statements. Except as set forth in SCHEDULE C-8, the federal
income tax returns of SCTC and each of the SCTC Subsidiaries have not been
audited by the Internal Revenue Service during the past 10 years. There is not
now any proposed assessment of additional taxes, and there are no waivers or
agreements by SCTC for the extension of time for the assessment of any taxes.
SCTC and each of the SCTC Subsidiaries have filed all required sales, an valorem
and other tax returns and have paid all of such taxes required to be paid by
them prior to the date hereof.
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3.09 Notes and Accounts Receivable. Except as set forth in SCHEDULE
C-9, all notes receivable and accounts receivable reflected on the Most Recent
Balance Sheet (net of reserves stated therein) were, and all such receivables
held in SCTC and the SCTC Subsidiaries on the date hereof are, valid obligations
of the respective makers thereof and were not, and are not subject to any valid
offset or counterclaim, and are not subject to prior assignment, claim, lien or
security interest. No allowances for uncollectible accounts and notes and
contract cancellations are reflected on the Most Recent Balance Sheet. SCTC has
no reason to believe that its future experience with respect to the allowances
for uncollectible accounts and notes and contract cancellations will be
different from its historical experience.
3.10 Actions, Suits, Etc. SCHEDULE C-10 sets forth as of the date of
this Agreement all actions, suits, claims, complaints, charges, hearings,
investigations, arbitrations (or other dispute resolution proceedings) or other
proceedings pending or threatened against, by or affecting SCTC or any of the
SCTC Subsidiaries in any court or panel or before any arbitrator or governmental
agency, domestic or foreign, other than actions related to garnishments of
employee wages. Neither SCTC nor any of the SCTC Subsidiaries has been charged
with, or is under investigation with respect to, any charge concerning any
violation of any provision of any federal, state or other applicable law or
administrative regulation in respect to its business, except as set forth in
SCHEDULE C-10. Except as set forth in SCHEDULE C-10, there are no judgments
unsatisfied against SCTC or any SCTC Subsidiary and no consent decrees to which
SCTC or any SCTC Subsidiary is subject. Neither SCTC nor any of the SCTC
Subsidiaries is involved in or threatened with any labor dispute which could
have an adverse effect on the business and operations of SCTC and the SCTC
Subsidiaries taken as a whole. Additionally, SCHEDULE C-10 sets forth a summary
of the number and amount of all other unpaid and unsettled claims received by
SCTC and the SCTC Subsidiaries regarding their policies or operations. Upon due
inquiry, neither SCTC, SCTC Subsidiary nor Selling Shareholders knows,
anticipates or has notice of any reasonable basis for any of the actions
described above.
3.11 Agencies, Agents and Associates. SCHEDULE C-11 sets forth an
accurate, correct and complete list of: (a) agencies, agents, sales associates
or similar persons or entities through which SCTC or any SCTC Subsidiary place
title insurance policies or which otherwise direct purchasers of title insurance
and related services to SCTC or any SCTC Subsidiary ("Agents"), (b) Agents whose
relationship with SCTC or any SCTC Subsidiary has been terminated within one
year prior to the date hereof, (c) all persons who have become Agents within one
year prior to the date hereof, and (d) all agreements, arrangements and
understandings between SCTC or a SCTC Subsidiary and an Agent
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(the "Agency Agreements"). Each Agent is licensed under and otherwise complies
with all applicable laws, rules and regulations, including the regulations of
state insurance regulators.
3.12 Material Contracts. SCHEDULE C-12 sets forth an accurate, correct
and complete list of all instruments, commitments, agreements, arrangements and
understandings related to the Business to which SCTC or any SCTC Subsidiary is a
party or bound, or pursuant to which SCTC or any SCTC Subsidiary is a
beneficiary, meeting any of the descriptions set forth below (the "Material
Contracts"):
(a) Real Estate Leases, Personal Property Leases, Insurance,
licenses of Intellectual Property, Technical Information or Software,
Agency Agreements, Employment Contracts and Benefit Plans;
(b) Any contract for capital expenditures or for the purchase of
goods or services in excess of $20,000, except those incurred in the
ordinary course of business and to be performed in six months or less;
(c) Any purchase order, agreement or commitment obligating SCTC
or any SCTC Subsidiary to sell or deliver any product or service at a
price which does not cover the cost (including labor, materials and
overhead) plus the customary profit margin associated with such product
or service;
(d) Any instrument evidencing indebtedness, any liability for
borrowed money, any obligation for the deferred payment of the purchase
price for property in excess of $20,000 (excluding normal trade
payables), or any instrument guaranteeing any indebtedness, obligation
or liability;
(e) Any joint venture, partnership, cooperative arrangement or
any other agreement involving a sharing of profits;
(f) Any advertising contract not terminable without payment or
penalty on sixty (60) days (or less) notice;
(g) Any deed, lease, easement, agreement or other instrument
affecting any right, title or interest in or to real property;
(h) Any contract with any government or any agency or
instrumentality thereof;
(i) Any license or royalty agreement;
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(j) Any power of attorney, proxy or similar instrument;
(k) The Certificate of Incorporation, bylaws and other
organizational or constitutive documents of SCTC and any SCTC
Subsidiary and any agreement among stockholders of SCTC or any SCTC
Subsidiary;
(l) Any contract for the purchase or sale of any of its assets
other than in the ordinary course of business or granting an option or
preferential rights to purchase or sell any assets;
(m) Any contract to indemnify any party or to share tax liability
with any party;
(n) Any contract for the purchase or sale of foreign currency or
otherwise involving foreign exchange transactions;
(o) Any contract containing covenants not to compete in any line
of business or with any person in any geographical area;
(p) Any contract relating to the acquisition of a business or the
equity of any other person;
(q) Any contract relating to the purchase or sale of a portion of
its requirements or output;
(r) Any other contract, commitment, agreement, arrangement or
understanding related to the Business (other than those excluded by an
express exception from the descriptions set forth in subsections (a)
through (q) above) which (i) provides for payment or performance by
either party thereto having an aggregate value of $20,000 or more, (ii)
is not terminable without payment or penalty on sixty (60) days (or
less) notice, or (iii) is between SCTC or any SCTC Subsidiary or any of
their Affiliates (as defined below); and
(s) Any proposed arrangement of a type that if entered into would
be a Material Contract.
Accurate, correct and complete copies of each Material Contract have been
delivered to Fidelity. Each Material Contract is in full force and effect and is
valid, binding and enforceable in accordance with its terms. Each party has
complied with all material commitments and obligations on its part to be
performed or observed under each Material Contract. No event has occurred which
is or, after the giving of notice or passage of time, or both, would constitute
a default under or a breach of any Material Contract by SCTC or any SCTC
Subsidiary, or, to the
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knowledge of SCTC, by any other party. SCTC has not received or given notice of
an intention to cancel or terminate a Material Contract or to exercise or not
exercise options or rights under a Material Contract. Neither SCTC nor any SCTC
Subsidiary has received any notice of a default, offset or counterclaim under
any Material Contract, or any other communication calling upon SCTC or any SCTC
Subsidiary to comply with any provision of any Material Contract or ascertaining
noncompliance. The consummation of the transactions contemplated hereby, without
notice to or consent or approval of any party, will not constitute a default
under or a breach of any provision of a Material Contract, and Fidelity will
have and may enjoy and enforce all rights and benefits under each Material
Contract. There is no security interest, lien, encumbrance or claim of any kind
on SCTC's or any SCTC Subsidiary's interest under any Material Contract.
3.13 Lists of Certain Employees, Bank Accounts, Insurance Policies and
Investments. SCHEDULE C-13 contains, with respect to SCTC and the SCTC
Subsidiaries:
(a) a true and complete list showing the names and compensation
arrangements of all persons whose rate of compensation from SCTC or any of the
SCTC Subsidiaries for the current fiscal year will equal or exceed $20,000,
including a summary description of all agreements, arrangements or
understandings, written or oral, with officers, directors and employees of SCTC
or any SCTC Subsidiary, regarding services to be rendered, terms and conditions
of employment, and compensation (the "Employment Contracts"). The services of
all present employees will continue to be available on substantially the same
terms and conditions to Fidelity following the Closing. SCHEDULE C-13 sets forth
an accurate, correct and complete list of each employee who may become entitled
to receive supplementary retirement benefits or allowances, whether pursuant to
a contractual obligation or otherwise, and the estimated amounts of such
payments. Since December 31, 1994, neither SCTC nor any SCTC Subsidiary has (i)
paid, or made any accrual or arrangement for the payment of, bonuses or special
compensation of any kind, including any severance or termination pay, to any
present or former officer or employee, (ii) made any general wage or salary
increases or (iii) increased or altered any other benefits or insurance provided
to any employee. No employee is eligible for payments that would constitute
"parachute payments" under Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"). SCTC and each SCTC Subsidiary have complied with all laws,
rules and regulations relating to the employment of labor, including provisions
relating to wages, hours, equal opportunity, occupational health and safety,
severance, collective bargaining and the payment of social security and other
taxes. Except as disclosed in SCHEDULE C-13, there is not and will not be any
duty, responsibility, liability or obligation under any laws, rules or
regulations relating to employment or any common law
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trust or contractual duty or standard of care arising from an employment
relationship attributable to an event occurring or a state of facts existing
prior to the Closing Date;
(b) the name and address of each bank in which SCTC or any of the
SCTC Subsidiaries has an account, safe deposit box, deposit, line of credit or
other loan facility and, except for escrow and other trustee accounts, the names
of all persons authorized to draw thereon or to have access thereto; and
(c) a true and complete list and brief description of all
policies of fire, liability, life and all other forms of insurance owned or held
by SCTC or any of the SCTC Subsidiaries, all of which are in full force and
effect on the date hereof. SCTC is not aware of any condition or fact which
would lead it to believe that such policies would not insure SCTC and the SCTC
Subsidiaries in a manner which is reasonably adequate at all times to protect
them against risks of a material nature customarily insured against by others in
the same location and engaged in the same or similar businesses that may
reasonably be expected to have a material adverse effect upon the financial
condition or business of SCTC and the SCTC Subsidiaries considered as a whole,
there are no pending or asserted claims against such insurance as to which any
insurer has denied liability, and there are no claims under such insurance that
have not been properly filed. SCHEDULE C-13 also sets forth the claims
experience for the last two full fiscal years and the interim period through the
date hereof with respect to the Business (both insured and self-insured); and
(d) a list of all marketable securities owned, together with the
date of purchase, cost basis, current book value and the market value, as of
June 30, 1995, of such securities. Except as set forth in SCHEDULE C-13, and
except for routine maturities, sales and investments of funds in U.S. Treasury
short-term obligations, since December 31, 1994 there have been no material
portfolio sales or transfers. SCTC has good and marketable title to all of such
investments. All of the securities on SCHEDULE C-13 and in the Form 9 are (a)
properly valued at the lower of cost or market, (b) readily marketable, and (c)
fully paid and not subject to assessment or other claims upon the holder
thereof.
3.14 Union Agreements and Employee Relations. Neither SCTC nor any of
the SCTC Subsidiaries is a party to any union or collective bargaining
agreements, or similar agreements with employees as a group, nor does SCTC have
knowledge of any pending or potential attempt to unionize any of the employees
of SCTC or any of the SCTC Subsidiaries. Neither SCTC nor any of the SCTC
Subsidiaries have, during the last five years, been the subject of a union
election. To the best of SCTC's knowledge, neither SCTC nor any of the SCTC
Subsidiaries have reason to believe that their continuing relations with their
employees will vary in any
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way that would have a material adverse affect on the business or operations of
SCTC or any of the SCTC Subsidiaries.
3.15 Employee Benefit Plans.
(a) Benefit Plans. SCHEDULE C-15 sets forth an accurate, correct
and complete list and summary description of all "welfare benefit plans" (as
defined in Section 3(2) of the Employee Retirement Income SCTC Act of 1974, as
amended ("ERISA")), "employee pension benefit plans" (as defined in Section 3(2)
of ERISA), bonus, profit sharing, deferred compensation, incentive or other
compensation plans or arrangements, and other employee fringe benefit plans
whether funded or unfunded, qualified or unqualified (all the foregoing being
herein called "Benefit Plans") maintained or contributed to by SCTC or any SCTC
Subsidiary or any other organization which is a member of a controlled group of
organizations (within the meaning of Sections 4l4(b), (c), (m) or (o) of the
Code) for the benefit of any of its officers, employees or other persons. SCTC
has delivered to Fidelity accurate, correct and complete copies of (i) each
Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions
thereof), (ii) the most recent annual report on Form 5500 and attached Schedule
B (including any related actuarial valuation report), if any, filed with the
Internal Revenue Service with respect to any Benefit Plan (if any such report
was required), (iii) each trust agreement and group annuity contract relating to
any Benefit Plan, (iv) certified financial statements, (v) attorney's response
to an auditor's request for information, (vi) collective bargaining agreements
or other such contracts, (vii) Form S-8, including any amendments thereto,
(viii) each ruling letter or any outstanding ruling request on the tax exempt
status of any voluntary employees' beneficiary association ("VEBA") implementing
a Benefit Plan, and (ix) each general notification to employees of their rights
under Section l62(k) of the Code and any other such correspondence indicating
compliance with said Section l62(k).
(b) Funding. All contributions to, and payments from, the Benefit
Plans that may have been required to be made in accordance with the Benefit
Plans and, when applicable, Section 302 of ERISA or Section 412 of the Code,
have been timely made. All such contributions to, and payments from, the Benefit
Plans, except those payments to be made from a trust qualified under Section
401(a) of the Code, for any period ending before the Closing Date that are not
yet, but will be, required to be made, will be properly accrued and reflected in
the SCTC Financial Statements. With respect to each Benefit Plan that is subject
to Title I, Subtitle B, Part 3 of ERISA (concerning "Funding"), the funding
method used in connection with such Benefit Plan is acceptable under ERISA, and
the actuarial assumptions used in connection with funding such Benefit Plan, in
the aggregate, are reasonable. SCHEDULE C-15 sets forth as of June 30, 1995 (i)
the actuarial present value (based upon the same actuarial
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assumptions as those heretofore used for funding purposes) of all vested and
nonvested (but without any assumption that nonvested accrued benefits have
become nonforfeitable) accrued benefits (whether on account of retirement,
termination, death or disability) under such Benefit Plan, (ii) if such Benefit
Plan uses a benefit accrual formula having reference to final earnings, the
actuarial present value of the benefits under such Benefit Plan as calculated in
(i), but based upon projected earnings increases of five percent per annum,
(iii) the actuarial present value (based upon the same actuarial assumptions,
other than turnover assumptions, as those heretofore used for funding purposes)
of vested benefits under such Benefit Plan, (iv) the net fair market value of
the assets held to fund such Benefit Plan, (v) the funding method used in
connection with such Benefit Plan, (vi) the amount and plan year of any
"accumulated funding deficiency" as defined in Section 302(a)(2) of ERISA which
exists with respect to any plan year of such Benefit Plan, and (vii) the amount
of any employee contributions under such Benefit Plan. With respect to each
Benefit Plan, including an "individual account plan" (as defined in Section
3(34) of ERISA), SCHEDULE C-15 sets forth (A) the amount of any liability of
SCTC or any SCTC Subsidiary for contributions due with respect to such Benefit
Plan as of the Closing Date and as of the end of any subsequent plan year ending
prior to the Closing, and the date any such amounts were paid, and (B) the
amount of any contribution paid with respect to such Benefit Plan for the plan
year in which the Closing occurs. As of the most recent valuation date for each
funded Benefit Plan that is a defined benefit pension plan, the present value of
the accrued benefits (as computed by the actuaries for such Benefit Plan using
the actuarial assumptions in effect for such purposes as reflected in the most
recent actuarial report or valuation for such Benefit Plan) of all participants
and former participants in such Benefit Plan did not, and as of the Closing Date
such present value will not, exceed the fair market value of its assets.
(c) Compliance With the Code and ERISA. SCTC and the SCTC
Subsidiaries and each Benefit Plan (and any related trust agreement or annuity
contract or any other funding instrument) comply currently, and have complied in
the past, both as to form and operation, with the provisions of ERISA and the
Code (including Section 410(b) of the Code relating to coverage and Section
l62(k) relating to health coverage continuation), where required in order to be
tax-qualified under Section 401(a) of the Code, and all other applicable laws,
rules and regulations; all necessary governmental approvals for the Benefit
Plans have been obtained; and, where available, a favorable determination as to
the qualification under the Code of each of the Benefit Plans and each amendment
thereto has been made by the Internal Revenue Service. All the Benefit Plans, as
adopted or as they may have been amended as, when and to the extent required,
comply with the applicable provisions of the Tax Equity and Fiscal
Responsibility Act of 1982, the Deficit Reduction Act of 1984, the Retirement
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Equity Act of 1984, the Tax Reform Act of 1986, the Omnibus Budget
Reconciliation Xxx 0000, the Budget Act of 1987, the Omnibus Budget
Reconciliation Act of 1988, the Technical and Miscellaneous Revenue Act of 1988,
and the Revenue Reconciliation Act of 1989. Except as set forth in SCHEDULE
C-15, the Benefit Plans that are pension benefit plans have received
determination letters from the Internal Revenue Service to the effect that such
Benefit Plans are qualified and exempt from federal income taxes under Sections
401(a) and 501(a), respectively, of the Code, and no such determination letter
has been revoked nor, to the knowledge of SCTC, has revocation been threatened,
nor has any such Benefit Plan been amended since the date of its most recent
determination letter or application therefor in any respect which would
adversely affect its qualification or materially increase its cost.
(d) Administration. Each Benefit Plan has been administered to
date in compliance with the requirements of the Code and ERISA. All reports,
returns and similar documents with respect to the Benefit Plans required to be
filed with any government agency or distributed to any Benefit Plan participant
have been duly and timely filed or distributed. Except as set forth in SCHEDULE
C-15, there are no investigations by any governmental agency, termination
proceedings or other claims (except claims for benefits payable in the normal
operation of the Benefit Plans), suits or proceedings against or involving any
Benefit Plan or asserting any rights or claims to benefits under any Benefit
Plan that could give rise to any material liability, nor, to the knowledge of
SCTC, are there any facts that could give rise to any material liability in the
event of any such investigation, claim, suit or proceeding. Future compliance
with the requirements of ERISA as in effect on the Closing Date or any
collective bargaining agreements to which SCTC or any SCTC Subsidiary is a party
will not result in any increase in the rate of benefit accrual under any Benefit
Plan. SCTC's financial statements reflect all of SCTC's employee benefit
liabilities in a manner satisfying the requirements of FAS 87 and 88. No event
has occurred and no condition exists under any Benefit Plan that would subject
SCTC, any SCTC Subsidiary or Fidelity to any tax under Code Sections 497l, 4972,
4977 or 4979 or to a fine under ERISA Section 502(c). All forms, documents and
other materials have been filed with the Securities and Exchange Commission or
otherwise distributed as required by the Securities Act of l933, as amended.
There are no leased employees (as defined in Section 4l4(l) of the Code) that
must be taken into account under any Benefit Plan.
(e) Prohibited Transactions. No "prohibited transaction" (as
defined in Section 4975 of the Code or Section 406 of ERISA) has occurred which
involves the assets of any Benefit Plan and which could subject SCTC, a SCTC
Subsidiary or any of their respective employees, or a trustee, administrator or
other fiduciary of any trusts created under any Benefit Plan
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to the tax or penalty on prohibited transactions imposed by Section 4975 of the
Code or the sanctions imposed under Title I of ERISA. No Benefit Plan has been
terminated nor have there been any "reportable events" (as defined in Section
4043 of ERISA and the regulations thereunder) with respect thereto. Neither SCTC
nor any SCTC Subsidiary nor any trustee, administrator or other fiduciary of any
Benefit Plan nor any agent of any of the foregoing has engaged in any
transaction or acted or failed to act in a manner which could subject SCTC, any
SCTC Subsidiary, the Business or Fidelity to any liability for breach of
fiduciary duty under ERISA or any other applicable law.
(f) Other Plans. SCHEDULE C-15 sets forth an accurate, correct
and complete list and summary description of each deferred compensation plan,
bonus plan, stock option plan, employee stock purchase plan and any other
employee benefit plan, agreement, arrangement or commitment not required under a
previous subsection to be set forth in SCHEDULE C-15 (other than normal policies
concerning holidays, vacations and salary continuation during short absences for
illness or other reasons) maintained by SCTC or a SCTC Subsidiary.
(g) Liabilities to PBGC. SCTC and the SCTC Subsidiaries have paid
all premiums (and interest charges and penalties for late payment, if
applicable) due the Pension Benefit Guaranty Corporation ("PBGC") with respect
to each Benefit Plan and each plan year thereof for which such premiums are
required. There has been no "reportable event" (as defined in Section 4043(b) of
ERISA and the regulations of the PBGC under such Section) with respect to any
Benefit Plan subject to Title IV of ERISA. No liability to the PBGC has been
incurred by SCTC or the SCTC Subsidiary or any corporation or other trade or
business under common control with SCTC or any SCTC Subsidiary (as determined
under Section 414(c) of the Code) ("Common Control Entity") on account of any
termination of an employee pension benefit plan subject to Title IV of ERISA. No
filing has been made by SCTC or any Common Control Entity with the PBGC (and no
proceeding has been commenced by the PBGC) to terminate any employee pension
benefit plan subject to Title IV of ERISA maintained, or wholly or partially
funded, by SCTC or any Common Control Entity. Neither SCTC nor any SCTC
Subsidiary nor any Common Control Entity has (i) ceased operations at a facility
so as to become subject to the provisions of Section 4062(e) of ERISA, (ii)
withdrawn as a substantial employer so as to become subject to the provisions of
Section 4063 of ERISA, (iii) ceased making contributions on or before the
Closing Date to any employee pension benefit plan subject to Section 4064(a) of
ERISA to which SCTC or any Common Control Entity made contributions during the
five years prior to the Closing Date, or (iv) made a complete or partial
withdrawal from a multi-employer plan (as defined in Section 3(37) of ERISA) so
as to incur withdrawal liability as defined in Section 4201 of ERISA (without
regard to subsequent reduction or waiver of such liability under Section
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4207 or 4208 of ERISA). No Benefit Plan subject to Title IV of ERISA has
incurred any material liability to the PBGC other than for the payment of
premiums, all of which have been paid when due. No Benefit Plan has applied for
or received a waiver of the minimum funding standards imposed by Section 412 of
the Code, and no Benefit Plan has an "accumulated funding deficiency" within the
meaning of Section 412(a) of the Code as of the most recent plan year. SCTC has
furnished to Fidelity the most recent actuarial report or valuation with respect
to each Benefit Plan that is a "defined benefit pension plan" (as defined in
Section 3(35) of ERISA). The information supplied to the actuary by SCTC and the
SCTC Subsidiaries for use in preparing those reports or valuations was complete
and accurate and SCTC has no reason to believe that the conclusions expressed in
those reports or valuations are incorrect.
(h) Multi-employer Plans. Except as set forth in SCHEDULE C-15,
at no time since September 25, 1980, has SCTC or any SCTC Subsidiary been
required to contribute to any "multi-employer pension plan" (as defined in
Section 3(37) of ERISA) or incurred any withdrawal liability, within the meaning
of Section 4201 of ERISA, or announced an intention to withdraw, but not yet
completed such withdrawal, from any multi-employer pension plan. Except as set
forth in SCHEDULE C-15, if SCTC and the SCTC Subsidiaries were to make a
complete withdrawal from each such multi-employer pension plan, within the
meaning of Section 4203 of ERISA, no withdrawal liability of SCTC and the SCTC
Subsidiaries would be incurred.
(i) Validity and Enforceability. All Benefit Plans, related trust
agreements or annuity contracts (or any other funding instruments) and all
plans, agreements, arrangements and commitments referred to in this Section are
legally valid and binding and in full force and effect.
3.16 Absence of Undisclosed Liabilities.
(a) Except to the extent reflected on the Most Recent Balance
Sheet or on a Schedule attached hereto, neither the Business nor SCTC or any
SCTC Subsidiary has or will have any indebtedness, duty, responsibility,
liability or obligation of any nature, whether absolute, accrued, contingent or
otherwise, related to or arising from the operation of the Business or the
ownership, possession or use of any assets through the Closing Date, other than
in the ordinary course of business on terms and conditions and in amounts
consistent with past practices and on terms not more onerous than available to
other corporations.
(b) SCTC and each SCTC Subsidiary are solvent, having assets
which at a fair valuation exceed their respective liabilities, and SCTC and each
SCTC Subsidiary are able to meet their debts as they mature and will not become
insolvent as a result of the transactions contemplated hereby. SCTC is not
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entering into the transactions contemplated by this Agreement with the intent to
hinder, delay or defraud any entity to which it is indebted. Following
consummation of the transactions contemplated by this Agreement, SCTC and each
SCTC Subsidiary will have sufficient capital and property remaining to conduct
the business in which it will thereafter be engaged.
(c) Except as shown on SCHEDULE C-16, SCTC does not have any
undisclosed accrued benefits to its employees or retired employees, including
but not limited to health benefits to retirees.
3.17 Reserves.
(a) The SCTC Financial Statements reflect adequate reserves to
make any improvements or to construct any facilities on or in connection with
any of the properties or developments of SCTC or any of the SCTC Subsidiaries
which SCTC or any of the SCTC Subsidiaries is legally obligated to make or
construct.
(b) The reserves reflected in the SCTC Financial Statements at
December 31, 1994 and on the Most Recent Balance Sheet, for insurance policy
benefits, losses, claims and expenses, and the reserves carried on the books of
SCTC and the SCTC Subsidiaries after that date, are consistent with both SCTC's
current and historical loss experience and industry practice.
3.18 Accuracy of Information. None of the information furnished by
SCTC to Fidelity for use in any filing by Fidelity shall contain any untrue
statement of a material fact or shall omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading.
3.19 Shareholder Materials. No materials furnished to the shareholders
of SCTC in connection with the transactions contemplated by this Agreement will
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
3.20 Obligations for Indemnification. Except as disclosed in SCHEDULE
C-20, no person has any claim for indemnification under SCTC's Certificate of
Incorporation or bylaws, or under applicable state law, and to the best
knowledge of SCTC no basis for any such claim exists.
3.21 Approvals of Governmental Authorities. No consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority is required in connection with the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby and thereby, except for (i) requirements of federal
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securities law, (ii) requirements of any applicable state securities laws, (iii)
requirements of any applicable state insurance or insurance holding company
laws, and (iv) filing and recordation of all appropriate documents as required
by the laws of the State of California.
3.22 Regulatory Filings. SCHEDULE C-22 lists (i) since December 31,
1989, all quarterly and annual statements which SCTC and the SCTC Subsidiaries
authorized to do business as underwritten title companies have filed with or
submitted to the insurance regulatory commissions, agencies or authorities of
their respective domestic jurisdictions and (ii) since December 31, 1989, all
reports of examinations issued by such insurance regulatory commissions,
agencies or authorities in respect of SCTC or any of such SCTC Subsidiaries.
Except as indicated in SCHEDULE C-22, (a) such filings or submissions were in
substantial compliance when filed, and (b) no material deficiencies have been
asserted to SCTC in writing by any such regulatory commission, agency or
authority with respect to such filings or submissions. The statutory financial
statements of SCTC and each of such SCTC Subsidiaries contained in the
statements identified in (i) above have been prepared in accordance with the
required or permitted statutory insurance accounting requirements and practices,
except as expressly set forth or disclosed in the notes, exhibits or schedules
thereto (which notes, exhibits and schedules fairly present the data purported
to be shown thereby). SCHEDULE C-22 further sets forth all pending applications
by SCTC before all governmental and regulatory entities, including without
limitation applications for approval of policy terms and premiums. SCTC has
delivered to Fidelity a copy of each of the most recent Annual Statements on
Form 9 as filed by SCTC and the SCTC Subsidiaries with the appropriate
authorities of their respective domestic jurisdictions.
3.23 Material Changes. Except as may be set forth in SCHEDULE C-23,
since December 31, 1994:
(a) there have not been changes which in the aggregate are
materially adverse in the business ("material" meaning for purposes of this
Section 3.23 having an aggregate cost to SCTC of $20,000 or more), assets,
liabilities, results of operations or financial condition of SCTC or any of the
SCTC Subsidiaries, or in their relationship with agents, salesmen, lenders,
suppliers, customers, employees, or others, whether such changes have occurred
in the ordinary course of business or otherwise;
(b) there has not been any declaration, setting aside, or payment
of any dividend or other distribution on or in respect of the SCTC Stock, nor
has there been any direct or indirect redemption, retirement, purchase or other
acquisition of any SCTC Stock, or any issuance of any SCTC Stock;
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(c) except pursuant to the normal annual review of all Branch
Managers and the Executive Staff effective January 1, 1995, and normal salary
reviews of salaried employees, there has not been any increase in the
compensation or in the rate of compensation or commissions payable or to become
payable by SCTC or any of the SCTC Subsidiaries to any director, officer,
salaried employee earning $25,000 or more per annum, or any payment of or
commitment to pay any bonus, profit-sharing or other extraordinary compensation
to any employee;
(d) there has not been any damage, destruction or loss, whether
or not covered by insurance, materially and adversely affecting the properties
or business of SCTC or the SCTC Subsidiaries;
(e) other than in the ordinary course of business, there has not
been any material disposition of or encumbrance or agreement to dispose of or to
encumber, or any material pledge or grant of a security interest in or agreement
to pledge an interest in, any of the material properties or assets of SCTC or
the SCTC Subsidiaries, or any increase or any agreement to increase any
indebtedness of SCTC or the SCTC Subsidiaries;
(f) there has not been any merger or consolidation involving SCTC
or the SCTC Subsidiaries or any agreement to merge or consolidate with any other
corporation or entity; or acquisition of or agreement to acquire any stock,
business, property or assets of any other person, firm, association, corporation
or other business organization, except for routine portfolio investments;
(g) there has not been any labor dispute which materially and
adversely affects the business or business prospects or properties of SCTC or
the SCTC Subsidiaries;
(h) there has not been any settlement in respect of any actions,
suits or proceedings at law or in equity involving any payment by SCTC or any of
the SCTC Subsidiaries in an amount in excess of $5,000 individually, or $20,000
in the aggregate;
(i) there has not been any loan or advance except normal travel
advances or reasonable expense advances to any officer, employee or shareholder
of SCTC or the SCTC Subsidiaries;
(j) there has not been any cancellation by SCTC or the SCTC
Subsidiaries, without payment in full, of any notes, loans, or other obligations
receivable from any officer, director or shareholder of SCTC or the SCTC
Subsidiaries, or any member of their families, or from any corporation,
partnership, or other entity in which any officer or director or shareholder of
SCTC or of the SCTC Subsidiaries or any member of their families, has any
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direct or indirect interest known to SCTC or the SCTC Subsidiaries;
(k) there has not been any sale or grant to any party or parties
of any license, franchise, option or other right of any nature whatsoever to
sell, distribute, or otherwise deal in or with the property of SCTC or the SCTC
Subsidiaries, other than in the ordinary course of business, or any sale or
grant to any party or parties of any license, franchise, option or other right
of any nature to use any patent, trade name, trademark, service xxxx, copyright,
pending applications therefor, trade secrets or other proprietary rights of SCTC
or the SCTC Subsidiaries;
(l) there has not been any change in the accounting methods or
practices of SCTC or the SCTC Subsidiaries or any change in depreciation or
amortization policies or rates theretofore adopted by SCTC or the SCTC
Subsidiaries;
(m) there has not been any contract entered into for services or
otherwise with any of the officers, directors or shareholders of SCTC or the
SCTC Subsidiaries or members of their families;
(n) there has not been any increase in the reserves for insurance
policy benefits, losses, claims and expenses carried on the books of SCTC or any
of the SCTC Subsidiaries which is material to the business, financial condition
or prospects of SCTC and the SCTC Subsidiaries taken as a whole;
(o) there has not been any forgiveness or cancellation of debts
or claims, waiver of any rights or any discharge or satisfaction of any lien,
charge or encumbrance or payment of any liability or obligation, other than
current liabilities in the ordinary course of business; and
(p) there has not been any agreement or commitment by SCTC or the
SCTC Subsidiaries to do or take any of the actions referred to in subsections
(a) through (o) of this Section.
Except as disclosed in SCHEDULE C-23, since December 31, 1991,
neither SCTC nor any SCTC Subsidiary has made any major decisions affecting the
Business, including (i) changes in management organization or personnel
arrangements with Agents, brokers, advertising agencies, market research
projects, advertising and promotion budgets or the content of advertisements or
working capital levels (payables and receivables); (ii) changes in discretionary
costs such as advertising, maintenance and repairs, research and development,
and training; (iii) proposed new contracts or variations in existing contracts;
(iv) any capital expenditures or deferral of capital expenditures; (v) deviation
from operating budgets or plans on sales and profitability; or (vi) any other
matters affecting the long-term course of the Business.
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3.24 Transactions with Affiliates. Since December 31, 1994, there has
not been any dividend or other distribution of assets by SCTC or any SCTC
Subsidiary. Except as otherwise disclosed in SCHEDULE C-24, no Affiliate (as
defined below):
(a) Owns, directly or indirectly, any debt, equity or other
interest or investment in any corporation, firm or other entity
which is a competitor, lessor, lessee, customer, supplier or
advertiser of the Business;
(b) Has any cause of action or other claim whatsoever against
or owes any material amount to, or is owed any material amount
by, SCTC or the SCTC Subsidiaries;
(c) Has any interest in or owns any property or right used in
the conduct of the Business;
(d) Has lent or advanced any money to, or borrowed any money
from, or guaranteed or otherwise become liable for any
indebtedness or other obligations of, or acquired any capital
stock, obligations or securities of, any SCTC Subsidiary;
(e) Is a party to any contract, lease, agreement, arrangement
or commitment used in the Business; or
(f) Received from or furnished to the Business any goods or
services (with or without consideration) since December 31, 1992.
The term "Affiliate" shall mean any member of the immediate family (including
spouse, brother, sister, descendant, ancestor or in-law) of any officer,
director or shareholder of SCTC, or any corporation, partnership, trust or other
entity in which SCTC or any such family member has a material interest or is a
director, officer, partner or trustee. The term Affiliate shall also include any
entity which controls, or is controlled by, or is under common control with any
of the individuals or entities described in the preceding sentence.
3.25 Certain Advances. Except as set forth in SCHEDULE C-25, there are
no amounts owed to SCTC or the SCTC Subsidiaries by any directors, officers,
employees, consultants or shareholders or owed by any Affiliate of any director
or officer, other than advances in the ordinary and usual course of business to
officers and employees for reimbursable business expenses.
3.26 Related Parties. Except as set forth in SCHEDULE C-26, no officer
or director of SCTC or the SCTC Subsidiaries, or any Affiliate of any such
person, has either directly or indirectly, (i) an interest in any corporation,
partnership, firm
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or other person or entity which furnishes or sells services or products which
are similar to those furnished or sold by SCTC, or (ii) a beneficial interest in
any contract or agreement to which SCTC or the SCTC Subsidiaries is a party or
by which SCTC or the SCTC Subsidiaries may be bound. For purposes of this
Section 3.26, there shall be disregarded any interest which arose solely from
the ownership of less than a five percent equity interest in a corporation whose
stock is regularly traded on any national securities exchange or in the
over-the-counter market.
3.27 Motor Vehicles. SCHEDULE C-27 contains an accurate, correct and
complete list of all motor vehicles used in the Business, whether owned or
leased. All such vehicles are (a) properly licensed and registered in accordance
with applicable law, (b) insured as set forth on SCHEDULE C-27, (c) in good
operating condition and repair (reasonable wear and tear excepted) and (d) not
subject to any lien or other encumbrance.
3.28 Real Estate. SCTC does not own any Real Estate.
3.29 Real Estate Leases. SCHEDULE C-29 sets forth an accurate, correct
and complete list of all Real Estate leased or subleased by SCTC or a SCTC
Subsidiary, including identification of the lease or sublease, street address,
legal description and list of contracts, agreements, leases, subleases, options
and commitments, oral or written, affecting such Real Estate or any interest
therein to which SCTC or a SCTC Subsidiary is a party or by which SCTC or a SCTC
Subsidiary is bound (the "Real Estate Leases"). SCTC has delivered to Fidelity
accurate, correct and complete copies of each Real Estate Lease. With respect to
such Leases:
(a) The Real Estate Leases are in full force and effect and
are valid, binding and enforceable in accordance with their
respective terms;
(b) No amounts payable under any Real Estate Lease are past
due;
(c) Each party thereto has complied with all material
commitments and obligations on its part to be performed or
observed under each Real Estate Lease;
(d) Neither SCTC nor any SCTC Subsidiary has received any
notice of a default, offset or counterclaim under any Real Estate
Lease, or any other communication calling upon SCTC or any SCTC
Subsidiary to comply with any provision of any Real Estate Lease
or ascertaining non-compliance, and no event or condition has
happened or presently exists which constitutes a default or,
after notice or lapse of time or both, would constitute a default
under any Real Estate Lease;
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(e) The consummation of the transactions contemplated hereby,
without notice to or consent or approval of any party, will not
constitute a breach of or a default under any provision of any
Real Estate Lease, Fidelity will have and may enjoy and enforce
all rights and benefits of the lessee under each Real Estate
Lease, and SCTC shall obtain and deliver to Fidelity prior to
Closing an Estoppel Certificate in form and substance
satisfactory to Fidelity's counsel from the lessor under each
Real Estate Lease indicating each such lessor's consent to
continuation of each Real Estate Lease unchanged following
consummation of the transactions contemplated hereby; and
(f) There is no security interest, lien, encumbrance or claim
of any kind on SCTC's or any SCTC Subsidiary's leasehold interest
under any Real Estate Lease.
SCTC has delivered to Fidelity accurate, correct and complete copies of existing
title insurance policies, title reports, surveys, environmental audits and
similar reports, if any, for the real property subject to the Real Estate
Leases. At the Closing, SCTC shall deliver to Fidelity any consents or approvals
of any parties that may be required in connection with the purchase of the SCTC
Stock by Fidelity.
3.30 Personal Property Leases. SCHEDULE C-30 contains an accurate,
correct and complete list of all leases of personal property used in the
Business (the "Personal Property Leases"). SCTC has delivered to Fidelity
accurate, correct and complete copies of each Personal Property Lease. With
respect to such Personal Property Leases:
(a) The Personal Property Leases are in full force and effect
and are valid, binding and enforceable in accordance with their
respective terms;
(b) No amounts payable under any Personal Property Lease are
past due;
(c) Each party thereto has complied with all material
commitments and obligations on its part to be performed or
observed under each Personal Property Lease;
(d) Neither SCTC nor any SCTC Subsidiary has received any
notice of a default, offset or counterclaim under any Personal
Property Lease, or any other communication calling upon SCTC or
any SCTC Subsidiary to comply with any provision of any Personal
Property Lease or ascertaining
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non-compliance, and no event or condition has happened or
presently exists which constitutes a default or, after notice or
lapse of time or both, would constitute a default under any
Personal Property Lease;
(e) The consummation of the transactions contemplated hereby,
without notice to or consent or approval of any party, will not
constitute a breach of or a default under any provision of any
Personal Property Lease, and Fidelity will have and may enjoy and
enforce all rights and benefits of the lessee under each Personal
Property Lease; and
(f) There is no security interest, lien, encumbrance or claim
of any kind on SCTC's or any SCTC Subsidiary's leasehold interest
under any Personal Property Lease.
At the Closing, SCTC shall deliver to Fidelity any consents or approvals of any
parties required in connection with the assignment of the Personal Property
Leases to Fidelity.
3.31 Intellectual Property. SCHEDULE C-31 contains an accurate,
correct and complete list and summary description of all patents, trademarks,
trademark rights, trade names, trade styles, trade dress, service marks,
copyrights and applications for any of the foregoing utilized by the Business
(the "Intellectual Property"). During the preceding five years, neither SCTC nor
any SCTC Subsidiary has been known by or done business under any name other than
those listed on SCHEDULE C-31. SCHEDULE C-31 also contains an accurate, correct
and complete list and summary description of all licenses and other agreements
relating to any Intellectual Property. None of the Intellectual Property is
subject to any extensions, renewals, taxes or fees due within 90 days after
Closing. Except as set forth on SCHEDULE C-31, with respect to the Intellectual
Property, (a) SCTC is the sole and exclusive owner and has the sole and
exclusive right to use the Intellectual Property; (b) no action, suit,
proceeding or investigation is pending or, to SCTC's knowledge, threatened; (c)
none of the Intellectual Property interferes with, infringes upon, conflicts
with or otherwise violates the rights of others or is being interfered with or
infringed upon by others, and none is subject to any outstanding order, decree,
judgment, stipulation or charge; (d) there are no royalty, commission or similar
arrangements, and no licenses, sublicenses or agreements, pertaining to any of
the Intellectual Property; (e) neither SCTC nor any SCTC Subsidiary has agreed
to indemnify any person for or against any infringement of or by the
Intellectual Property; (f) all items of Intellectual Property are properly
registered under applicable law; and (g) the Intellectual Property constitutes
all such assets, properties and rights which are used in or necessary for the
conduct of the
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Business. The operation of the Business by Fidelity after the Closing in the
manner and geographic areas in which the Business is currently conducted by SCTC
and the SCTC Subsidiaries will not interfere with or infringe upon any patent or
trademark or any asserted rights of others. Neither SCTC nor any SCTC Subsidiary
is subject to any judgment, order, writ, injunction or decree of any court or
any federal, state, local or other governmental agency or instrumentality,
domestic or foreign, or any arbitrator, or has entered into or is a party to any
contract which restricts or impairs the use of any Intellectual Property.
3.32 Trade Secrets. SCHEDULE C-32 contains an accurate, correct and
complete list and summary description of all information in the nature of
know-how, trade secrets or proprietary information, including formula,
inventions, loss models, processes, compilations of information, copyrightable
material and technical information, if any, relating to the Business (the
"Technical Information"). All Technical Information:
(a) Is owned solely and exclusively by SCTC and SCTC is
solely responsible for the development of such Technical
Information;
(b) Is fully and completely documented and in condition for
conveyance to and readily usable by Fidelity;
(c) Has been continuously maintained in confidence by SCTC,
used in areas separated from business activities involving
contact with the public, and the only copies of which are
maintained at the offices of SCTC under secure conditions; and
(d) Has been maintained as a trade secret by SCTC by taking
all necessary action to protect such Technical Information as a
trade secret.
All Technical Information and any copies thereof shall be delivered to Fidelity
at Closing. SCTC has no knowledge of any violation of any trade secret rights or
copyrights with respect to such Technical Information. Only the individuals
named on SCHEDULE C-32 hereto, which describes their relationship with SCTC,
have had access to the Technical Information, and each such individuals have
signed a non-disclosure pact regarding such Technical Information.
3.33 Software and Information Systems. SCTC has all necessary right,
title and interest to all electronic data processing systems, information
systems, computer software programs, program specifications, charts, procedures,
source codes, input data, routines, data bases (including title plants) and
report layouts and formats, record file layouts, diagrams,
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functional specifications and narrative descriptions, flow charts and other
related material used in the Business (collectively the "Software"). SCHEDULE
C-33 contains an accurate, correct and complete list and summary description of
all Software and identifies (i) Software which is owned by SCTC and any licenses
thereof; (ii) Software which is licensed to SCTC and whether any copies of such
licensed Software have been made; (iii) any other Software in which SCTC has any
use, possessory or proprietary rights; and (iv) all pending Software development
projects, together with an identification of the persons undertaking such
projects. With respect to the Software:
(a) All Software documentation is current, accurate and
sufficient in detail and content to identify and explain it, and
to allow its full and proper use by Fidelity without reliance on
the special knowledge or memory of others, except as disclosed in
SCHEDULE C-33;
(b) No proprietary rights in any Software have been
transferred, whether by sale, assignment or license, or have been
lost for any reason, within the past two years;
(c) All Software is presently protectable, and is not part of
the public knowledge or literature, nor has any Software been
used, divulged or appropriated for the benefit of any other
person, or to the detriment of SCTC except as contemplated by the
customer contracts identified in SCHEDULE C-33;
(d) SCTC's rights in the Software are free and clear of any
liens, encumbrances, restrictions, or legal or equitable claims
of others, except as contemplated in any customer contract
identified in SCHEDULE C-33;
(e) SCTC has taken appropriate measurers to protect the
secrecy, confidentiality and value of the Software;
(f) SCTC has received no notice of any violation of trade
secret rights, copyrights or other proprietary rights with
respect to any Software and knows of no meritorious basis
therefor; and
(g) Any copies of Software are in SCTC's possession and
control, except for certain copies of Software in the possession
of customers pursuant to license agreements with SCTC listed on
SCHEDULE C-33.
The term "computer software programs" includes any set of arithmetic and/or
logical instructions meant to run on, or to
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control the operation of, any computer, (i) whether the instructions are a
complete program, a collection of programs making up a subsystem or subroutine,
or meant to operate in conjunction with other Software, and (ii) whether the
instructions must be run through another computer program (i.e., a "compiler")
before being usable on a computer, whether be used at execution time in
conjunction with another computer program (i.e., an "interpreter") or whether
such instructions are in a form that can be run on a computer "as is", except
for any necessary interfaces with the computer's microcode, operating system or
reference-resolving routines (i.e., "loaders" or "linkage editors").
3.34 Compliance with Law. Except as set forth in SCHEDULE C-34, (i) the
Business conforms to all applicable statutes, codes, ordinances, licensing
requirements, laws, rules and regulations, except for such minor violations as
do not impair or interfere with the Business, (ii) SCTC and each SCTC Subsidiary
have complied with all statutes, codes, ordinances, licensing requirements,
laws, rules, regulations, decrees, awards or orders applicable to its business
or operations, including those relating to employment, environmental matters,
employee benefits, the production, marketing and sale of products, trade
regulation, antitrust, warranties and control of foreign exchange; and there is
not and will not be any liability arising from or related to any violations
thereof, (iii) to SCTC's knowledge, there is no proposed or pending change in
any such law, rule or regulation which would adversely affect the Business, (iv)
no notice from any governmental body or other person of any violation of any
statute, code, ordinance, law, rule or regulation or requiring or calling
attention to the necessity of any alteration in connection with the Business has
been served, and SCTC knows of no meritorious basis therefor, or (v) neither
SCTC, nor any officer, agent or employee of SCTC, nor, to the knowledge of SCTC,
any agent, associate or any other person acting on behalf of SCTC or any SCTC
Subsidiary, (a) has made any unlawful domestic or foreign political
contributions, (b) has made any payment or provided services which were not
legal to make or provide or which SCTC or such SCTC Subsidiary or any such
officer, employee or other person should have known were not legal for the payee
or the recipient of such services to receive, (c) has received any payments,
services or gratuities which were not legal to receive or which SCTC or such
SCTC Subsidiary or such person should have known were not legal for the payor or
the provider to make or provide, (d) has had any transactions or payments which
are not recorded in its accounting books and records or disclosed in its
financial statements, (e) has had any off-book bank or cash accounts or "slush
funds", (f) has made any payments to governmental officials in their individual
capacities for the purpose of affecting their action or the action of the
government they represent to obtain special concessions, or (g) has made illegal
payments to obtain or retain business.
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3.35 Brokers. Neither SCTC nor any SCTC Subsidiary has retained any
broker, finder or agent or incurred any liability or obligation for any
brokerage fees, commissions or finders fees with respect to this Agreement or
the transactions contemplated hereby and SCTC hereby indemnifies and holds
harmless Fidelity from and against any costs, claims, demands, damages, loss or
liability resulting from a claim by any third party seeking payment of any such
fees or commissions.
3.36 Environmental Matters. The ownership, use and operation by SCTC
and each SCTC Subsidiary, and each of their predecessors, of each facility used
in the Business has been and on the Closing Date will be and, to the knowledge
of SCTC, all ownership, use and operation of each such facility by any other
person has been, in compliance with all federal, state and local environmental
and anti-pollution laws and regulations, including the Resource Conservation and
Recovery Act, as amended ("RCRA"), its implementing regulations and all
applicable state hazardous waste laws and regulations; the Clean Water Act, as
amended, its implementing regulations and all applicable state effluent
discharge laws and regulations; the Clean Air Act, as amended, its implementing
regulations and all applicable state air emission laws and regulations; and all
such laws and regulations concerning particulate emissions, hazard
communication, surface water pollution, groundwater pollution, air pollution,
solid wastes, hazardous wastes, storage, handling, treatment, transportation,
spills or other releases, and disposal of any substance, material or waste, and
exposure to or notification regarding any substance, material or waste. No
action, suit, proceeding, investigation, complaint or charge exists for
violation of any such laws, rules or regulations and there is no meritorious
basis therefor.
3.37 Deficiency Accounts. SCHEDULE C-37 contains an accurate, correct
and complete list of the only accounts which are held in trust by SCTC for third
parties which have funding deficiencies or shortfalls (the "Deficiency
Accounts").
3.38 Disclosure.
(a) The representations and warranties of SCTC contained in this
Agreement and each Schedule, certificate or other written statement delivered
pursuant to this Agreement or in connection with the transactions contemplated
herein are accurate, correct and complete in all material respects, and do not
contain any untrue statement of a material fact or, considered in the context in
which presented, omit to state a material fact necessary in order to make the
statements and information contained herein or therein not misleading.
(b) Copies of any underlying documents listed or described in the
Schedules referred to in this Agreement have heretofore been furnished to
Fidelity. All such documents
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furnished to Fidelity are true and correct copies, and there are no amendments
or modifications thereto, except as expressly noted in the Schedules in which
such documents are incorporated. The minute books of SCTC and the SCTC
Subsidiaries contain full, complete and accurate records of all meetings and
other corporate actions taken by the directors and shareholders of SCTC and the
SCTC Subsidiaries.
(c) SCTC is not aware of any information necessary to enable a
prospective purchaser to make an informed investment decision to purchase the
SCTC Stock which has not been expressly disclosed to Fidelity in writing. There
is no fact which materially adversely affects or in the future may (so far as
SCTC can now foresee) materially adversely affect the business, operations,
properties, prospects or condition, financial or otherwise, of the Business or
the ability of SCTC or the Selling Shareholders to fully perform this Agreement
and the transactions contemplated hereby, which has not been set forth or
described in this Agreement or in an Schedule, certificate or other written
statement furnished to Fidelity. There is no fact, other than general economic
conditions, which adversely affects or might reasonably be expected to adversely
affect in the future the business, operations, properties, prospects or
condition, financial or otherwise, of the Business in any material respect which
has not been set forth or referred to in this Agreement, including the
Schedules.
(d) Except as otherwise disclosed in writing pursuant hereto, all
of SCTC's assets are free and clear of all liabilities, obligations, liens and
encumbrances excepting only those liabilities and obligations that are expressly
to be assumed by Fidelity hereunder and those liens and encumbrances securing
the same that are specifically disclosed herein or expressly permitted by the
terms hereof.
SECTION 4
CONDUCT OF SCTC PENDING CLOSING
The following covenants and agreements of SCTC shall be effective from
the date hereof to the Closing, unless Fidelity shall otherwise consent in
writing to the waiver of any of such covenants and agreements:
4.01 General. SCTC shall not take any action which would result in, or
fail to take any action reasonably required to prevent, the material inaccuracy
or breach of any of the representations and warranties of SCTC set forth in
Section 3 hereof. The Business shall be conducted solely in the ordinary course
consistent with past practice. SCTC shall not cause or permit to occur any of
the events or occurrences described in Section 3.23 hereof.
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4.02 Indebtedness and Compensation. The business of SCTC and the SCTC
Subsidiaries shall be conducted only in the ordinary course, without the
creation of any indebtedness for borrowed money. SCTC shall not become obligated
to pay or pay any increases in compensation or bonuses to any employee or
contractor.
4.03 Maintenance of Properties. SCTC and each of the SCTC Subsidiaries
shall maintain their properties and assets in good operating condition, ordinary
wear and tear excepted.
4.04 Change in Capital Stock. No change will be made in the authorized
or issued capital stock of SCTC or any of the SCTC Subsidiaries, and SCTC and
the SCTC Subsidiaries will not issue or grant any right or option to purchase or
otherwise acquire any of their capital stock.
4.05 Sales or Encumbrances of Assets. Except in the ordinary course of
business, neither SCTC nor any SCTC Subsidiary will sell, mortgage, lease, buy
or otherwise acquire, transfer or dispose of any real estate or any interest
therein, and will not sell or transfer, mortgage, pledge or subject to any lien,
charge or other encumbrance any other tangible or intangible asset. Acquisitions
and dispositions of deeds of trust, real estate, and interests therein, in
connection with a title or escrow claim, shall be deemed to be in the ordinary
course of business if immaterial in number and value.
4.06 Banking Relationships. No change will be made in the banking and
related arrangements referred to in Section 3.13 hereof.
4.07 Maintenance of Insurance. SCTC shall notify Fidelity of any
changes in the terms of the insurance described in Section 3.13 hereof.
4.08 Maintenance of Books. The books of SCTC and the SCTC Subsidiaries
will he maintained in the usual, regular and ordinary course on a basis
consistent with prior years.
4.09 Preservation of Business. SCTC and each of the SCTC Subsidiaries
will use their best efforts to preserve their business organization, to keep
available the services of their present employees, and to preserve the goodwill
of their suppliers, customers and others having business relations with them.
4.10 Meeting of Shareholders. SCTC shall as soon as practicable
following the approval of the proposed acquisition by the California Department
of Insurance and any other necessary regulating agency approval, whichever shall
occur last, call a meeting of its shareholders for the purpose of submitting
this Agreement and the transactions contemplated hereby for approval
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by such shareholders. In connection with such meeting, SCTC shall prepare and
submit to its shareholders a notice of meeting and shareholder materials
necessary to fully disclose the terms of the transactions described in this
Agreement as set forth in this Agreement, and shall comply with respect to the
conduct of such meeting in all material respects with the requirements, if any,
of applicable federal or state law.
4.11 Consents. SCTC will obtain the consent of the following persons,
where such consent is required, in the opinion of Fidelity, for effective
consummation of the transactions contemplated by this Agreement: (i) the holders
of its outstanding indebtedness; (ii) the lessors of all leases and (iii) the
parties to any other agreements to which SCTC is a party or by which it is
bound. Any consent obtained under this Section 4.11 shall not result in a
material modification of the terms or conditions of any indebtedness, lease or
other agreement to which it pertains.
4.12 Access to Properties, Books, Etc. SCTC shall allow Fidelity and
its authorized representatives full access during normal business hours to all
of the properties, books, contracts, commitments and records of SCTC and each of
the SCTC Subsidiaries and shall furnish Fidelity such information concerning its
affairs as may reasonably be requested. No investigation made heretofore or
hereafter by Fidelity shall affect the representations and warranties of SCTC.
4.13 Board of Directors Meetings. SCTC shall give notice to Fidelity of
all Board of Directors meetings in the same manner as legally provided for
giving notice of meetings to members of the Board of Directors. Fidelity shall
be entitled to have a person designated by Fidelity attend Board meetings as an
observer, except for meetings or portions of meetings for the purpose of
discussing the transactions contemplated herein.
4.14 Compliance with Laws, Etc. SCTC and the SCTC Subsidiaries shall
comply with all laws, ordinances, rules, regulations and orders applicable to
the Business, or any of their respective operations, assets or properties in
respect thereof, the noncompliance with which might materially affect the
Business or the SCTC Stock.
4.15 Update Schedules. SCTC shall promptly disclose to Fidelity any
information contained in its representations and warranties or the Schedules
delivered pursuant to this Agreement which, because of an event occurring after
the date hereof, is incomplete or is no longer correct as of all times after the
date hereof until the Closing Date; provided, however, that none of such
disclosures shall be deemed to modify, amend or supplement the representations
and warranties of SCTC, the SCTC Subsidiaries or the Selling Shareholders,
unless Fidelity shall have consented thereto in writing.
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4.16 Press Releases. Except as required by applicable law, neither SCTC
nor the Selling Shareholders shall give notice to third parties or otherwise
make any public statement or releases concerning this Agreement or the
transactions contemplated hereby except for such written information as shall
have been approved in writing as to form and content in advance by Fidelity,
which approval shall not be unreasonably withheld.
SECTION 5
SURVIVAL AND INDEMNIFICATION
5.01 Survival. All representations, warranties, covenants and
agreements contained in this Agreement or in any document delivered pursuant
hereto shall be deemed to be material and to have been relied upon by the
parties hereto, and shall survive the Closing. The representations and
warranties set forth in this Agreement shall not be affected by any
investigation, verification or approval by any party hereto or by anyone on
behalf of any such party, except as specifically set forth in an Schedule or
other document delivered pursuant to this Agreement.
5.02 Indemnification. Selling Shareholders shall indemnify, defend and
hold harmless on a pre-tax basis Fidelity and its Affiliates, if any, its
successors and assigns and their respective officers, directors, employees,
stockholders and Affiliates (collectively "Indemnitees") from and against any
and all loss, demand, damage, expense, cost (including court costs and
reasonable attorneys' fees), suit, action, claim, liability or obligation,
including foreseeable consequential damages incurred ("Losses") related to,
caused by or arising from any misrepresentation, breach of warranty or failure
to fulfill any covenant or agreement of SCTC, a SCTC Subsidiary or Selling
Shareholders contained herein.
5.03 Third-Party Claims. If a claim by a third party is made against
any person entitled to indemnification under Section 5.02 hereof arising out of
such claim, the person seeking such indemnification (the "Indemnified Party")
shall promptly notify the indemnifying party (the "Indemnifying Party") in
writing of such claim. The Indemnifying Party shall have 20 days after receipt
of the above-mentioned notice to undertake to conduct and control, through
counsel of its own choosing (subject to the consent of the Indemnified Party,
such consent not to be unreasonably withheld or delayed) and at its sole risk
and expense, the good faith settlement or defense of such claim, and the
Indemnified Party shall cooperate fully with the Indemnifying Party in
connection therewith; provided: (i) the Indemnified Party shall be entitled to
participate in such settlement or defense through counsel chosen by the
Indemnified Party; provided that the fees and expenses of such counsel shall be
borne by the Indemnified Party, and (ii) the Indemnifying Party shall have
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within the aforementioned 20-day period notified the Indemnified Party in
writing of its election to undertake such defense or settlement and confirmed in
writing its obligation to indemnify the Indemnified Party for the liability
asserted in such claim. The Indemnifying Party shall obtain the written consent
of the Indemnified Party, which shall not be unreasonably withheld or delayed,
prior to ceasing to defend, settling or otherwise disposing of such claim if as
a result thereof the Indemnified Party would become subject to injunctive or
other equitable relief or the business of the Indemnified Party would be
materially adversely affected in any manner. So long as the Indemnifying Party
is reasonably contesting any such claim in good faith, the Indemnified Party
shall fully cooperate with the Indemnifying Party in the defense of such claim
as is reasonably required by the Indemnifying Party, and the Indemnified Party
shall not pay or settle any such claim without the consent of the Indemnifying
Party, which consent shall not be unreasonably withheld or delayed. If the
Indemnifying Party does not give the Indemnified Party the timely written notice
of the undertaking referred to in clause (ii) above, the Indemnified Party shall
thereafter have the right to contest, settle or compromise the claim at its
exclusive discretion, at the risk and expense of the Indemnifying Party.
SECTION 6
REPRESENTATIONS AND WARRANTIES
OF FIDELITY
As an inducement to SCTC and the Selling Shareholders to enter into
this Agreement and to consummate the transactions contemplated hereby, Fidelity
represents and warrants to SCTC and the Selling Shareholders as follows:
6.01 Organization, Etc. Fidelity is a corporation duly organized,
validly existing and in good standing under the laws of the State or Delaware.
6.02 Corporate Authority. Fidelity has full corporate power and
authority to make, execute and perform this Agreement and the transactions
contemplated hereby, and the execution, delivery and performance of this
Agreement by Fidelity have been or will be duly authorized by all necessary
corporate action of Fidelity, subject to compliance with applicable regulatory
requirements.
6.03 No Default Resulting from Agreement. Neither the execution and
delivery of this Agreement nor performance by Fidelity in compliance with its
terms will result in any material breach of the terms and conditions of, or
constitute a default under, the Certificate of Incorporation or bylaws of
Fidelity or any material agreement, instrument, undertaking, judgment,
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decree, governmental order or other restriction or obligation to which Fidelity
is a party or by which it or any of its properties or assets may be bound or, to
its knowledge, affected.
6.04 Accuracy of Information. None of the information furnished by
Fidelity to SCTC and the Selling Shareholders for use in any filing by SCTC and
the Selling Shareholders shall contain any untrue statement of a material fact
or shall omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading.
6.05 Brokers. Except as set forth on SCHEDULE 6.05, no broker or,
finder has acted on Fidelity's behalf in connection with this Agreement or the
transactions contemplated hereby.
6.06 Approvals of Governmental Authorities. No consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority is required in connection with the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, except for (i), requirements of federal securities law, (ii)
requirements of any applicable state securities laws, (iii) requirements of any
applicable state insurance or insurance holding company laws, and (iv) filing
and recordation of all appropriate documents required by the laws of the State
of California.
6.07 Representations and Warranties. No representation, warranty or
covenant contained in this Agreement or in any written statement delivered
pursuant hereto or in connection with the transactions contemplated hereby
contains or shall contain any untrue material statement and does not and will
not omit to state any material fact necessary to make any statement not
misleading. Copies of all documents furnished to SCTC and the Selling
Shareholders in connection with this Agreement or pursuant hereto are true and
complete in all material respects.
SECTION 7
CONDUCT OF FIDELITY PENDING CLOSING
The following covenants and agreements of Fidelity shall be effective
from the date hereof to the Closing, unless SCTC shall otherwise consent in
writing to the waiver of any of such covenants and agreements:
7.01 Insurance, Banking and Corporation Regulatory Approvals. Fidelity
shall prepare and file with the appropriate departments of insurance, banking
and corporations applications for approval of the change of control of SCTC and
the SCTC Subsidiaries. Fidelity agrees to use its best efforts to obtain the
approvals of the insurance, banking and corporate regulatory
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authorities in the State of California and any other approvals as may be
required by various insurance and trust laws and to cooperate with each of the
other parties in connection therewith.
SECTION 8
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF FIDELITY
All of the obligations of Fidelity under this Agreement are subject to
the fulfillment prior to or at the Closing of each of the following conditions,
the waiver of any one or more of which by Fidelity must be in writing:
8.01 Accuracy of Representations and Warranties. The representations
and warranties of SCTC and the Selling Shareholders contained herein or in any
certificate, Schedule, certificate or other document delivered pursuant to the
provisions hereof or in connection herewith shall be true and correct in all
material respects as of the Closing Date with the same affect as though such
representations and warranties had been made at the Closing Date, except to the
extent such representations and warranties expressly relate only to an earlier
date, and except for changes contemplated by this Agreement or approved in
writing by Fidelity.
8.02 Compliance with Conditions. SCTC shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by it prior to the Closing.
8.03 Closing Documents. SCTC and the Selling Shareholders shall have
delivered to Fidelity:
(a) A certificate executed by the President and Treasurer of each
of SCTC and the Selling Shareholders, to the extent applicable, dated as of the
Closing Date, and certifying in such detail as Fidelity may reasonably request
to the fulfillment of the conditions specified in Sections 8.01 and 8.02 hereof;
(b) Duly adopted resolutions of the shareholders and Board of
Directors of SCTC certified by the Secretary or an Assistant Secretary of SCTC
the respective corporation as of the Closing Date, (i) authorizing and approving
the execution and delivery of this Agreement and the consummation of the
transactions contemplated herein and therein in accordance with their respective
terms, and (ii) authorizing and approving all other necessary and proper
corporate actions to enable SCTC to comply with the terms hereof;
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(c) Copies of Certificates of Incorporation of each of SCTC and
the SCTC Subsidiaries, certified as of a date not more than three days prior to
the Closing Date by the Secretary of State of the state of incorporation of each
such entity, along with certificates as to the legal existence and good standing
of SCTC and each of the SCTC Subsidiaries under the laws of such states, also
certified by the Secretary of State of the state of incorporation of each such
entity as of a date not more than three days prior to the Closing Date;
(d) An opinion of counsel for SCTC, dated the Closing Date,
substantially in the form of SCHEDULE D, with such modifications as shall be
acceptable to legal counsel for Fidelity; and
8.04 Consents. SCTC shall have obtained any consents required under
Section 4.11 hereof with respect to any indebtedness, leases or agreements which
are material to the business of SCTC or any SCTC Subsidiary, and the Estoppel
Certificates required pursuant to Section 3.29(e) hereof (which shall include an
Estoppel Certificate related to that certain Ground Lease applicable to the
property located at Xxxxxxxxx Boulevard and Oxnard Street in the County of Los
Angeles, and a Termination Agreement with respect to that certain Standard
Industrial/Commercial Single-Tenant Lease - Net dated May 1, 1995 applicable to
the property located at 0000 Xxxxxxxxx Xxxxxxxxx in the County of Los Angeles,
California.
8.05 Governmental Approvals. SCTC shall have received from any and all
governmental authorities, bodies or agencies having jurisdiction over the
transactions contemplated by this Agreement, or any part thereof, such consents,
authorizations and approvals as are necessary for the consummation thereof.
8.06 Resignations. SCTC shall obtain and deliver on the Closing Date
the resignations, effective as of the Closing Date, of all members of the Board
of Directors of SCTC and the SCTC Subsidiaries and such officers and employees
thereof as Fidelity shall request.
8.07 Adverse Changes. The business, operations, assets, properties or
prospects of the Business shall not have been and shall not be threatened to be
adversely affected in any way as a result of any event or occurrence.
8.08 No Threatened or Pending Litigation. On the Closing Date, no
suit, action or other proceeding or injunction or final judgment relating
thereto, shall be threatened or be pending before any court or governmental or
regulatory official, body or authority in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with this Agreement
or the consummation of the transactions contemplated hereby, and
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no investigation that might result in any such suit, action or proceeding shall
be pending or threatened.
8.09 Employment Agreement. Xxxxxxxx X. Xxxxxx shall have entered into
a new Employment Agreement with SCTC in form satisfactory to Fidelity.
8.10 Department of Insurance. Fidelity shall have received evidence
satisfactory to Fidelity confirming the agreement to expedite licensing of SCTC
and Butte County Title Company in specified counties and confirming the approval
of the transactions contemplated by this Agreement or related hereto by the
California Department of Insurance (including, but not limited to, evidence that
the California Insurance Commissioner has approved SCTC's application for the
change of control of SCTC).
8.11 Deficiency Accounts. The Deficiency Accounts shall been fully
funded.
8.12 Release of Security Interests and Guarantee. Fidelity shall have
received evidence satisfactory to Fidelity confirming the release by First L.A.
Bank of (i) all of SCTC's guarantees to First L.A. Bank and (ii) all security
interests of First L.A. Bank in the SCTC Stock and any and all of the assets of
SCTC or related to the Business.
8.13 Settlement Agreements. Land Title Insurance Company (and Lawyers
Title Insurance Corporation), Xxxx Xxxx, Commonwealth Land Title Insurance
Company, Transamerica Financial Services and Security Union Title Insurance
Company shall have entered into settlement agreements with SCTC in form
satisfactory to Fidelity.
SECTION 9
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SCTC
AND THE SELLING SHAREHOLDERS
All of the obligations of SCTC and the Selling Shareholders under this
Agreement are subject to the fulfillment prior to the Closing of each of the
following conditions, any one or more of which may be waived in writing by SCTC
and Selling Shareholders:
9.01 Governmental Approvals. Fidelity shall have received from any and
all governmental authorities, bodies or agencies having jurisdiction over the
transactions contemplated by this Agreement, or any part thereof, such consents,
authorizations and approvals as are necessary for the consummation thereof.
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SECTION 10
TERMINATION
To the extent and under the circumstances set forth in this Section 10,
this Agreement may be terminated at any time by Fidelity or SCTC and the Selling
Shareholders prior to the Closing upon written notice to the other party, and
upon any such termination no party hereto shall have any liability to the
others, except as specified in Section 12.09 below.
10.01 Material Adverse Changes. By Fidelity, if an adverse change in
the financial condition or business of SCTC considered as a whole shall have
occurred, or SCTC shall have suffered a material loss or damage to any of its
properties or assets, which change, loss or damage adversely affects or impairs
the ability of SCTC to conduct its business.
10.02 Non-Compliance by SCTC or Selling Shareholders. By Fidelity, if a
material term or condition of this Agreement to be complied with or performed by
SCTC or the Selling Shareholders at or before the Closing shall not by that time
have been complied with or performed within 10 days of written notice to SCTC or
the Selling Shareholders of such non-compliance or non-performance, and such
non-compliance or non-performance shall not have been waived in writing by
Fidelity.
10.03 Non-Compliance by Fidelity. By SCTC or the Selling Shareholders,
if a material term, covenant, or condition of this Agreement to be complied with
or performed by Fidelity at or before the Closing shall not by that time have
been complied with or performed within 10 days of written notice to Fidelity of
such non-compliance or non-performance, and such non-compliance or
non-performance shall not have been waived in writing by SCTC and the Selling
Shareholders.
10.04 Litigation Regarding Agreement. By the Board of Directors of SCTC
or Fidelity if there shall be pending against any of the Selling Shareholders,
SCTC or Fidelity, or threatened in a writing received by any such party, any
litigation or governmental proceeding seeking or threatening to seek to enjoin
the Closing, or to obtain damages or the payment of penalties if the Closing is
consummated; provided that the Board of Directors of the party seeking to
terminate this Agreement under this Section 10.04 (i) shall have received a
written opinion of its counsel hereunder, within 30 days after the institution
or threat of such litigation or proceedings, to the effect that, after
reasonable investigation, based on facts available to such counsel, such
litigation or proceeding (whether directed at it or the other party) has a
reasonable possibility of success, and (ii) shall have on a reasonable basis
determined that the payment of such damages or penalties would adversely affect
the business or financial condition of the party against whom such damages or
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penalties would be assessed. The Selling Shareholders, SCTC and Fidelity each
shall promptly notify the others of any litigation or proceedings of the type
which is the subject of this Section which is commenced or threatened against
such party.
SECTION 11
NON-COMPETITION
11.01 Non-competition. Except with the written consent of Fidelity,
Xxxxxxxx X. Xxxxxx covenants and agrees that he will not, at any time within the
Effective Period (as defined below), directly or indirectly engage in, or have
any interest in, any person, firm, corporation or business (whether as an
employee, officer, director, agent, shareholder, creditor, consultant or
otherwise) that operates a business similar in any respect to the business of
SCTC, in any of the counties, cities or states of the United States in which
Fidelity has conducted its business within the 24-month period immediately
preceding the Effective Period. The "Effective Period" shall commence upon the
date hereof and shall terminate upon the fifth (5th) anniversary of the date of
this Agreement.
11.02 Consideration. Twenty-Five Thousand Dollars ($25,000) of the
Purchase Price paid pursuant to Section 1.02 shall be in consideration of the
covenant contained in Section 11.01.
11.03 Separate Covenants. The parties hereto intend that the covenant
contained in Section 11.01 shall be construed as a series of separate covenants:
one for each county, city or state, as the case may be; and one for each one
year period. Except for geographic coverage, each such separate covenant shall
be deemed identical in terms to the covenant contained in Section 11.01. If in
any judicial proceeding a court shall refuse to enforce any of the separate
covenants deemed included in Section 11.01, then such unenforceable covenant
shall be deemed eliminated from this Agreement to the extent necessary to permit
the remaining separate covenants to be enforced.
11.04 No Interference. Each Selling Shareholder covenants and agrees
that he will not at any time within the Effective Period disrupt, damage, impair
or interfere with the business of SCTC or Fidelity, whether by way of
interference with or raiding its employees, disrupting its relationships with
customers, agents, representatives or vendors, or otherwise.
11.05 Injunctive Relief. The parties acknowledge and agree that the
extent of damages to Fidelity in the event of a breach by the Selling
Shareholders of any of the covenants contained in this Agreement may be
impossible to ascertain and that there is and will be available to Fidelity no
adequate remedy at law to compensate it in the event of any such breach;
consequently, each
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Selling Shareholders agree that in the event of a breach of any of such
covenants, in addition to any other relief to which Fidelity may be entitled,
and not in lieu of any other rights and remedies available, Fidelity shall be
entitled to enforce any or all of such covenants by injunctive or other
equitable relief.
SECTION 12
MISCELLANEOUS
12.01 Notices, Etc. All notices, requests, demands, and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or, if mailed postage prepaid
first class certified mail, return receipt requested, on the third day after
mailing, to the following address or to such other address as a party may
specify to the other in writing.
(a) To Fidelity:
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Executive Vice President/
General Counsel
With a copy to:
Xxxxx X. Xxxxxx
President/Chief Executive Officer
Fidelity National Financial, Inc.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
And a copy to:
XxXxxxxxx, Will & Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
(b) To SCTC:
Southern California Title Company
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
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With a copy to:
Xxxxxx & Wheat
00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
(c) To the Selling Shareholders:
Xxxxxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxxxxxxx, #000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
and,
Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxxxxx, Xxxxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
12.02 Entire Agreement. This Agreement supersedes all prior and
contemporaneous discussions and agreements between and among Fidelity, SCTC and
Selling Shareholders with respect to the sale of the SCTC Stock and the other
matters contained herein, and this Agreement and the agreements to be executed
and delivered pursuant to this Agreement contain the sole and entire agreement
between and among the parties hereto with respect to the transactions
contemplated herein. Each and every provision of this Agreement has been the
subject of negotiation by the parties and no provision shall be construed
against a party by virtue of that party being deemed to have drafted it.
12.03 Amendments and Waivers. This Agreement may be amended only by an
instrument in writing executed by the party against whom enforcement of the
amendment is sought. The president or any vice president of any party may, by a
signed writing, give any consent, take any action, waive any inaccuracies in
representations or other compliance by any other party to any of the covenants
or conditions herein, modify the terms of this Agreement or take any other
action deemed by him to be necessary or appropriate to consummate the
transactions contemplated by this Agreement.
12.04 Counterparts; Headings. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the
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same instrument. The headings herein set out are for convenience of reference
only and shall not be deemed a part of this Agreement.
12.05 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors, and
it may not be assigned by any party without the consent of the other; provided,
however, that Fidelity shall have the right to assign this Agreement, in whole
or in part, to any corporation not less than ninety percent of the voting stock
of which is owned by Fidelity or its majority owned subsidiary, upon the
following conditions:
(a) such assignee shall, on or prior to the Closing Date, have
performed and observed all covenants and agreements to be performed or observed
by Fidelity under this Agreement;
(b) all of the conditions to the obligations of SCTC set forth in
this Agreement shall be satisfied by such assignee as if the assignee were
Fidelity; and
(c) if the Assignee is an insurer, that the Assignee has secured
any and all required state approvals necessary to purchase the stock of SCTC.
It is understood, however, that no such assignment shall relieve Fidelity of its
liabilities and obligations under the terms of this Agreement.
12.06 Governing Law. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of California, without giving effect to principles of conflicts of law thereof.
12.07 Cooperation. The Selling Shareholders, SCTC and Fidelity shall
cooperate fully with each other and their respective counsel and accountants in
connection with any steps required to be taken as part of their respective
obligations under this Agreement.
12.08 Expenses. Whether or not the transactions contemplated by this
Agreement are consummated, all expenses incurred by Fidelity, SCTC and the
Selling Shareholders in connection with the authorization, preparation,
execution and performance of this Agreement, including without limitation all
fees and expenses or agents, representatives, counsel and accountants, shall be
paid by the party which incurred such expenses.
12.09 Confidentiality. Each party understands that certain information
which it has been furnished and will furnish in connection with this transaction
is confidential and proprietary and each party agrees that it will maintain the
confidentiality
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of such information and will not disclose it to others or use it except in
connection with the proposed acquisition, without the consent of the party
furnishing such information. Information of a party which is generally known in
the industry, has been disclosed to its shareholders or creditors generally, is
required to be disclosed by a governmental entity of appropriate jurisdiction,
or which has been disclosed to the other party by third parties who have a right
to do so shall not be deemed confidential or proprietary information for these
purposes. In the event that the proposed acquisition is not consummated, each
party agrees to promptly return to the others all materials (and copies thereof)
which have been furnished to it regarding the business and financial condition
of the other party, including all financial statements, reports, contracts,
customer lists, accounts, records, tax returns, data, plans, processes and trade
secrets.
12.10 Attorneys Fees. In the event any action or proceeding is
commenced by a party hereto seeking enforcement or interpretation of this
Agreement, the prevailing party in such action shall be entitled, in addition to
other sums, to collect all costs of such suit (including attorneys' fees
actually incurred) from the party or parties adverse to such prevailing party in
such suit or proceeding.
12.11 Schedules. All Schedules referred to herein are intended to be
and hereby are specifically made a part of this Agreement.
12.12 Severability. Any provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
12.13 Guarantee. Selling Shareholders hereby jointly and severally
unconditionally guarantee to Fidelity and its Affiliates the full and timely
performance of all the obligations and agreements of SCTC. The foregoing
guarantee shall include the guarantee of the payment of all damages, costs and
expenses that might become recoverable as a result of the nonperformance of any
of the obligations or agreements of SCTC and/or Selling Shareholders or as a
result of the nonperformance of any or either of SCTC and/or Selling
Shareholders under this guarantee. Any guaranteed person may, at its option,
proceed against either Selling Shareholder for the performance of any such
obligation or agreement, or for damages for default in the performance thereof,
without first proceeding against any other party or against any of their
properties. Selling Shareholders further agree that their guarantee shall be an
irrevocable guarantee and shall continue in effect notwithstanding any extension
or modification
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of any guaranteed obligation, any assumption of any such guaranteed obligation
by any other party, or any other act or thing that might otherwise operate as a
legal or equitable discharge of a guarantor and Selling Shareholders hereby
waive all special suretyship defenses and notice requirements. Selling
Shareholders acknowledge and agree that this guarantee and the enforceability of
same is a material and essential inducement to Fidelity to proceed with this
transaction.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By: /S/ Xxxxxx X. Xxxxxx
----------------------------------------
Its:Executive Vice President
---------------------------------------
(Title)
SOUTHERN CALIFORNIA TITLE COMPANY
By: /S/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxx,
President
By: /S/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxxx,
Vice President and Chief Financial
Officer
SELLING SHAREHOLDERS:
/S/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
XXXXXXXX X. XXXXXX
/S/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------------
XXXXXXX X. XXXXXXXXXX
SPOUSAL CONSENT:
I am the spouse of a Selling Shareholder and acknowledge that I have
read, and am aware of the contents of, this Agreement. I hereby consent to and
approve this Agreement, and accept its terms. I further acknowledge and agree
that my interest, if any, and my spouse's interest in the SCTC Stock shall be
disposed of in accordance with the terms and conditions of this Agreement,
notwithstanding all interests I may have, if any, in the SCTC Stock (community
property or otherwise).
/S/ Xxxxxxxxx Xxxxxxxxxx
----------------------------------------
(signature)
/S/ Xxxxxxxxx Xxxxxxxxxx
----------------------------------------
(print name)
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