EXHIBIT 10.1
EXHIBIT C
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT dated September 14, 2005 among (i) Certegy Inc., a
Georgia corporation to be renamed Fidelity National Information Services, Inc.
(the "Company"), (ii) Fidelity National Financial, Inc., a Delaware corporation
("F Co Parent"), (iii) THL FNIS Holdings, LLC, Xxxxxx X. Xxx Cayman Fund V,
L.P., Xxxxxx X. Xxx Investors Limited Partnership, Xxxxxx Investment Holdings,
LLC, Xxxxxx Investments Employees' Securities Company I LLC, and Xxxxxx
Investments Employees' Securities Company II, LLC (collectively, "THL"), (iv)
TPG FNIS Holdings, LLC, TPG Parallel III, L.P., TPG Investors III, L.P., FOF
Partners III, L.P., FOF Partners III-B, L.P., and TPG Dutch Parallel III, C.V.
(collectively, "TPG"), and (v) Evercore METC Capital Partners II, LLC
("Evercore", and together with F Co Parent, THL, TPG and Evercore, the
"Shareholders").
WHEREAS, the Company, C Co Merger Sub, LLC, a Delaware limited liability
company and a direct wholly owned subsidiary of the Company ("Merger Co"), and
Fidelity National Information Services, Inc., a Delaware corporation ("F Co"),
have entered into an Agreement and Plan of Merger dated as of September 14, 2005
(as the same may be amended or supplemented, the "Merger Agreement"), pursuant
to and subject to the terms and conditions of which, among other things, F Co
will merge with and into Merger Co, with Merger Co surviving as a wholly owned
subsidiary of the Company (the "Merger");
WHEREAS, upon consummation of the Merger, the Shareholders will
Beneficially Own (as hereafter defined), in the aggregate, approximately 67% of
the Fully Diluted Voting Securities (as hereafter defined); and
WHEREAS, the parties hereto desire to enter into this Agreement to
establish certain arrangements with respect to the shares of Common Stock to be
Beneficially Owned by the Shareholders and their respective Affiliates following
the Effective Time (as defined in the Merger Agreement), as well as restrictions
on certain activities in respect of the Common Stock, corporate governance and
other related corporate matters;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Company and the Shareholders hereby agree, subject to the conditions herein
contained, as follows:
ARTICLE 1
INTERPRETATION
1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
have the following meanings:
"Affiliate" means, with respect to a specified Person, any other Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person, provided
that, solely for purposes of this Agreement and notwithstanding anything to the
contrary set forth herein, (i) neither the Company nor any of its Subsidiaries
shall be deemed to be a Subsidiary or Affiliate of any Shareholder solely by
virtue
of such Shareholder's ownership of Common Stock, the election of Directors
nominated by such Shareholder to the Board, the election of any other Directors
nominated by the Nominating Committee of the Board or any other action taken by
such Shareholder or its Affiliates which is permitted under this Agreement which
may be deemed to constitute control of the Company, in each case in accordance
with the terms and conditions of, and subject to the limitations and
restrictions set forth in, this Agreement (and irrespective of the
characteristics of the aforesaid relationships and actions under applicable law
or accounting principles) and (ii) no limited partner of THL, TPG, or Evercore,
or any affiliated investment fund of such Shareholder, not actively involved in
the management thereof, or any Person the Capital Stock of which is owned by any
such Shareholder or an affiliated investment fund but who is not controlled by
such Shareholder or affiliated investment fund, shall be deemed to be an
"Affiliate" of such Shareholder. For the purposes of this definition, "control"
(including, with correlative meaning, all conjugations thereof) means with
respect to any Person, the ability of another Person to control or direct the
actions or policies of such first Person, whether through the ownership of
voting securities, by contract or otherwise.
"Agreement" means this Shareholders Agreement as it may be amended,
supplemented, restated or modified from time to time.
"Beneficial Ownership" by a Person of any securities includes ownership by
any Person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares (i) voting power which
includes the power to vote, or to direct the voting of, such security; and/or
(ii) investment power which includes the power to dispose, or to direct the
disposition, of such security; and shall otherwise be interpreted in accordance
with the term "beneficial ownership" as defined in Rule 13d-3 adopted by the SEC
under the Exchange Act; provided that for purposes of determining Beneficial
Ownership, a Person shall be deemed to be the Beneficial Owner of any securities
which may be acquired by such Person pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise (irrespective of whether the right to acquire
such securities is exercisable immediately or only after the passage of time,
including the passage of time in excess of 60 days, the satisfaction of any
conditions, the occurrence of any event or any combination of the foregoing).
For purposes of this Agreement, a Person shall be deemed to Beneficially Own any
securities Beneficially Owned by its Affiliates or any Group of which such
Person or any such Affiliate is or becomes a member; provided, however, that
shares of Common Stock subject to options granted under Company benefit plans or
shares of Common Stock (including derivative interests therein) otherwise issued
under Company benefit plans to any Person who, at the time of the grant or
issuance, was an officer or director of the Company or any of its Subsidiaries
shall not solely for that reason be deemed to be Beneficially Owned by F Co
Parent or any of its Affiliates. The term "Beneficially Own" shall have a
correlative meaning.
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized by law to be closed in the
State of Florida.
"Bylaws" means the bylaws of the Company, as amended or supplemented from
time to time.
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"Capital Stock" means, with respect to any Person at any time, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited), membership interests, or equivalent ownership interests in
or issued by such Person.
"Charter" means the Amended and Restated Articles of Incorporation of the
Company, the form of which is set forth in Exhibit A to the Merger Agreement, as
amended or supplemented from time to time.
"Class 1 Director" means a Director holding office for a term expiring at
the 2006 annual meeting of the Company's Shareholders.
"Class 2 Director" means a Director holding office for a term expiring at
the 2007 annual meeting of the Company's Shareholders.
"Class 3 Director" means a Director holding office for a term expiring at
the 2008 annual meeting of the Company's Shareholders.
"Common Stock" means the Company's common stock, par value $0.01 per
share, and any other class of common stock of the Company that may be created
from time to time, and any securities issued in respect thereof, or in
substitution therefor, in connection with any stock split, dividend or
combination, or any reclassification, recapitalization, merger, consolidation,
exchange or other similar reorganization.
"Director" means any member of the Board (other than any advisory,
honorary or other non-voting member of the Board).
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC from time to time
thereunder (or under any successor statute).
"Fully Diluted" means the number of Voting Securities, after giving effect
to the issuance of Voting Securities issuable under all outstanding options,
warrants or other rights or securities convertible or exchangeable into Voting
Securities.
"Going Private Transaction" means any transaction that would constitute a
"Rule 13e-3 transaction" under paragraph (a)(3) of Rule 13e-3 promulgated under
the Exchange Act as in effect on the date of this Agreement, without giving
effect to the exception set forth in paragraph (g)(2) thereof.
"Group" shall have the meaning assigned to it in Section 13(d)(3) of the
Exchange Act.
"Independent Director" shall mean any Director who is or would be an
"independent director" with respect to the Company and with respect to F Co
Parent pursuant to Section 303A.02 of the New York Stock Exchange Listed Company
Manual and Section 10A of the Exchange Act (or any successor provisions).
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"Intercompany Agreements" shall mean those agreements listed on Schedule 1
hereto, as amended in accordance with the terms of the Merger Agreement prior to
the Effective Time and thereafter, from time to time in accordance with the
terms hereof.
"Ownership Percentage" means, at any time, with respect to any Person, the
quotient, expressed as a percentage, of (i) the Total Voting Power of all Voting
Securities then Beneficially Owned by such Person and its Affiliates divided by
(ii) the Total Voting Power of all Voting Securities then outstanding.
"Person" means a natural person, limited or general partnership,
corporation, limited liability company, joint-stock company, trust,
unincorporated association, joint venture, or other entity, government or any
agency or political subdivision thereof or any Group comprised of two or more of
the foregoing, and pronouns have a similarly extended meaning.
"Public Offering" means an offering and sale to the public of any Common
Stock pursuant to an effective Registration Statement.
"Registration Rights Agreement" means that certain Registration Rights
Agreement in the form attached as Exhibit E to the Merger and to be entered into
by the Company and each of the Shareholders as of the Effective Time.
"Registration Statement" means any registration statement of the Company
filed with the SEC pursuant to the Securities Act, under which any of the
Registrable Shares (as such term is defined in the Registration Right Agreement)
are included therein pursuant to the provisions of the Registration Rights
Agreement.
"Requisite Independent Directors" shall mean, at any time of
determination, a majority of the Independent Directors.
"Sale of the Company" means the consummation of a transaction, whether in
a single transaction or in a series of related transactions that are consummated
contemporaneously (or consummated pursuant to contemporaneous agreements), with
any other Person or Group on an arm's-length basis other than a Shareholder or
any Affiliate of a Shareholder, pursuant to which such party or parties (a)
acquire (whether by merger, stock purchase, recapitalization, reorganization,
redemption, issuance of capital stock or otherwise) more than 50% of the Voting
Securities, or (b) acquire assets constituting all or substantially all of the
assets of the Company and its Subsidiaries on a consolidated basis; provided,
however, that in no event shall a Sale of the Company be deemed to include any
transaction effected for the sole purpose of (i) changing, directly or
indirectly, the form of organization or the organizational structure of the
Company or any of its Subsidiaries without affecting the Beneficial Ownership or
control of the Company, or (ii) contributing stock to entities controlled by the
Company.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC from time to time thereunder
(or under any successor statute).
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"Subsidiary" means, with respect to any Person, any corporation or other
organization, whether incorporated or unincorporated, (i) of which such Person
or any other Subsidiary of such Person is a general partner (excluding
partnerships, the general partnership interests of which are held by such Person
or any Subsidiary of such Person that do not have a majority of the voting
interests in such partnership), or (ii) at least a majority of the securities or
other interests of which having by their terms ordinary voting power to elect a
majority of the board of directors or others performing similar functions with
respect to such corporation or other organization is directly or indirectly
owned or controlled by such Person or by any one or more of its Subsidiaries, or
by such Person and one or more of its Subsidiaries.
"Total Voting Power" means the total number of votes entitled to be cast
by the holders of the outstanding Common Stock and any other securities
entitled, in the ordinary course, to vote on matters put before the holders of
the Common Stock generally.
"Transfer" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of (by operation of law or
otherwise), either voluntarily or involuntarily, or to enter into any contract,
option or other arrangement with respect to the sale, transfer, assignment,
pledge, encumbrance, hypothecation or similar disposition of (by operation of
law or otherwise), any Voting Securities or any interest in any Voting
Securities; provided, however, that a merger, consolidation or similar business
combination transaction in which F Co Parent is a constituent corporation (or
otherwise a party including, for the avoidance of doubt, a transaction pursuant
to which a Person acquires all or a portion of F Co Parent's outstanding Capital
Stock, whether by tender or exchange offer, by share exchange, or otherwise)
shall not be deemed to be the Transfer of any Voting Securities Beneficially
Owned by F Co Parent or any of its Subsidiaries, provided that the primary
purpose of any such transaction is not to avoid the provisions of this Agreement
and that the successor or surviving person to such a merger, consolidation or
similar business combination transaction, if not F Co Parent, expressly assumes
all obligations of F Co Parent under this Agreement. For purposes of this
Agreement, the term Transfer shall include the sale of an Affiliate of F Co
Parent or F Co Parent's interest in an Affiliate that Beneficially Owns Voting
Securities unless such Transfer is in connection with a merger, plan of
consolidation or similar business combination transaction referred to in the
first proviso of the previous sentence.
"Unaffiliated Shareholder Approval" means (i) in the case of a tender or
exchange offer, that a majority of the outstanding shares of Common Stock not
Beneficially Owned by any Shareholder or its Affiliates shall have been tendered
and not duly withdrawn at the expiration time of such tender or exchange offer,
as it may have been theretofore extended, and (ii) in the case of a merger or
consolidation, that the holders of a majority of the outstanding shares of
Common Stock not Beneficially Owned by any Shareholder or its Affiliates shall
have been duly voted in favor of the applicable transaction at a meeting of
shareholders duly called and held.
"Voting Securities" means at any time shares of any class of Capital Stock
or other securities of the Company which are then entitled to vote generally in
the election of Directors and not solely upon the occurrence and during the
continuation of certain specified events, and any securities convertible into or
exercisable or exchangeable for such shares of Capital Stock.
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1.2 OTHER DEFINED TERMS. The following terms shall have the meanings
defined for such terms in the sections set forth below:
Defined Term Section
--------------------------------------- -----------
Acquisition 5.1(b)(ii)
Competitive Business 5.1(a)
Divestible Competitive Activity 5.1(b)(iii)
GBCC 1.4
Minor Competitive Activity 5.1(b)(iii)
Permitted Competitive Business Activity 5.1(b)(i)
Other Shareholder 4.2(b)(iii)
Separation Date 5.1(a)
Term 5.1(a)
1.3 INTERPRETATION.
(a) Any reference in this Agreement to gender shall include all
genders.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Article and
Section references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed thereto in the Merger Agreement.
(e) The table of contents and headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation".
1.4 METHODOLOGY FOR CALCULATIONS. For purposes of calculating the number
of outstanding shares of Common Stock or Voting Securities and the number of
shares of Common Stock or Voting Securities Beneficially Owned by the
Shareholders and their respective Affiliates as of any date, any shares of
Common Stock or Voting Securities held in the Company's treasury or belonging to
any Subsidiaries of the Company which are not entitled to be voted or counted
for purposes of determining the presence of a quorum pursuant to Section
14-2-721 of the Georgia Business Corporation Code or any successor statute (the
"GBCC") shall be disregarded.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to the Shareholders:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia, it has full power and authority
to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby, and the execution, delivery and performance by
it of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action;
(b) this Agreement has been duly and validly executed and delivered
by it and constitutes a legal and binding obligation of the Company, enforceable
against it in accordance with its terms; and
(c) the execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions contemplated
hereby will not, with or without the giving of notice or lapse of time, or both,
(i) violate any provision of law, statute, rule or regulation to which the
Company is subject, (ii) violate any order, judgment or decree applicable to the
Company, or (iii) conflict with, or result in a breach or default under, any
term or condition of the Company's organizational documents or any agreement or
instrument to which the Company is a party or by which it is bound.
2.2 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each Shareholder
(as to itself only) represents and warrants to the Company:
(a) such Shareholder is a corporation duly organized, validly
existing and in good standing under the laws of the State of its state of
incorporation, or it is a limited partnership or a limited liability company
duly formed, validly existing, and in good standing under the laws of the State
of its state of formation, as the case may be, such Shareholder has full power
and authority to execute, deliver and perform this Agreement and to consummate
the transactions contemplated hereby, and the execution, delivery and
performance by such Shareholder of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate, partnership or limited liability company action of such Shareholder.
(b) this Agreement has been duly and validly executed and delivered
by such Shareholder, and this Agreement constitutes a legal and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms; and
(c) the execution, delivery and performance by such Shareholder of
this Agreement and the consummation by such Shareholder of the transactions
contemplated hereby will not, with or without the giving of notice or lapse of
time, or both, (i) violate any provision of law, statute, rule or regulation to
which such Shareholder is subject, (ii) violate any order, judgment or decree
applicable to such Shareholder, or (iii) conflict with, or result in a breach or
default under, any term or condition of any agreement or other instrument to
which such Shareholder is a party or by which such Shareholder is bound.
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ARTICLE 3
COVENANTS REGARDING OWNERSHIP
3.1 STANDSTILL.
(a) Each Shareholder covenants and agrees with the Company that,
except as provided in paragraph (b) below or Section 3.2 hereof, it shall not,
and shall not permit any of its Affiliates to, directly or indirectly, alone or
in concert with others, acquire, offer or propose to acquire or agree to
acquire, whether by purchase, tender or exchange offer, through the acquisition
of control of another Person (whether by way of merger, consolidation or
otherwise), by joining a general or limited partnership, syndicate or other
Group or otherwise, the Beneficial Ownership of any additional Voting
Securities, or take any other action as a shareholder or otherwise, if such
acquisition or action (including the repurchase or issuance of Capital Stock by
the Company) would result in the Shareholders, in the aggregate, Beneficially
Owning Voting Securities representing more than 75% of the Fully Diluted Voting
Securities (the "Ownership Cap").
(b) (i) If at any time the Shareholders and their respective
Affiliates Beneficially Own in the aggregate Voting Securities representing more
than the Ownership Cap, then the Shareholders whose purchase of Voting
Securities causes the Ownership Cap to be exceeded shall, as soon as is
reasonably practicable, but in no event longer than 90 days after the Ownership
Percentage of the Shareholders and their respective Affiliates first exceeds the
Ownership Cap (but in no manner that would require any Shareholder or any such
Affiliate thereof to incur liability under Section 16(b) of the Exchange Act)
Transfer (in any manner permitted by Section 4.2(a) and in compliance with
Section 4.1(b), regardless of whether such Transfer occurs prior to or after the
first anniversary of the Closing) a number of Voting Securities sufficient to
reduce the amount of Voting Securities Beneficially Owned in the aggregate by
the Shareholders and their Affiliates to an amount representing not greater than
the Ownership Cap.
(ii) Notwithstanding any other provision of this Agreement, in
no event may any Shareholder or any of its Affiliates, directly or indirectly
including through any agreement or arrangement, exercise any voting rights,
during the term of this Agreement, in respect of any Voting Securities
Beneficially Owned by the Shareholders and their respective Affiliates
representing in excess of the Ownership Cap.
(c) Any additional Voting Securities acquired and Beneficially Owned
by the Shareholders or any of their respective Affiliates following the Closing
shall be subject to the restrictions contained in this Agreement as fully as if
such Voting Securities were acquired by such Shareholder at the Closing pursuant
to the Merger Agreement.
(d) For purposes of this Agreement, all determinations of the amount
of outstanding Voting Securities shall be based on information set forth in the
most recent quarterly or annual report, and any current report subsequent
thereto, filed by the Company with the SEC, unless the Company shall have
updated such information by delivery of written notice to the Shareholders.
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3.2 GOING PRIVATE TRANSACTIONS.
(a) F Co Parent shall, and shall cause its Affiliates to, refrain
from proposing, initiating or participating in any Going Private Transaction
unless such Going Private Transaction (i) involves the acquisition of or offer
to acquire 100% of the Common Stock not owned by the Shareholders and their
respective Affiliates (and, in the case of a Going Private Transaction to be
effected by means of a tender or exchange offer, includes a commitment by the
Shareholders or any such Affiliate to promptly consummate a short-form merger to
acquire any remaining shares of Common Stock at the same price in the event it
obtains pursuant to such tender or exchange offer such level of ownership of
such classes of Capital Stock that would be required to effect a merger pursuant
to Section 14-2-1104 of the GBCC or any successor provision) and (ii) is
conducted in compliance with this Section 3.2.
(b) Prior to the first anniversary of the Closing, F Co Parent
shall, and shall cause its Affiliates to, refrain from proposing or initiating
any Going Private Transaction unless invited to do so by the Requisite
Independent Directors. Any Going Private Transaction effected during this period
shall also be subject to the requirements of Section 3.2(c).
(c) From and after the first anniversary of the Closing, F Co Parent
or any of its Affiliates may propose, initiate or effect a Going Private
Transaction, provided that such Going Private Transaction is subject to and
conditioned upon the receipt of Unaffiliated Shareholder Approval.
ARTICLE 4
TRANSFER RESTRICTIONS
4.1 GENERAL TRANSFER RESTRICTIONS.
(a) The right of each Shareholder and its Affiliates to Transfer any
Voting Securities is subject to the restrictions set forth in this Article 4,
and no Transfer of Voting Securities by a Shareholder or any of its Affiliates
may be effected except in compliance with this Article 4. Any attempted Transfer
in violation of this Agreement shall be of no effect and null and void,
regardless of whether the purported transferee has any actual or constructive
knowledge of the Transfer restrictions set forth in this Agreement, and shall
not be recorded on the share transfer books of the Company.
(b) Each of the Shareholders, severally and not jointly, acknowledge
and agree:
(i) such Shareholder will not offer, sell, or otherwise
dispose of any shares of Common Stock except in compliance with the Securities
Act;
(ii) such Shareholder will not sell, transfer or otherwise
dispose of any shares of Common Stock unless (A) such sale, transfer or other
disposition is within the limitations of and in compliance with Rule 144
promulgated by the SEC under the Securities Act and the Shareholder furnishes
the Company with reasonable proof of compliance with such Rule, (B) in the
opinion of counsel, reasonably satisfactory to the Company and its counsel, some
other exemption from registration under the Securities Act is available with
respect to any such
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proposed sale, transfer, or other disposition of Common Stock or (C) the offer
and sale of Common Stock is registered under the Securities Act.
4.2 RESTRICTIONS ON TRANSFER.
(a) During an initial period of (i) one year following the Closing
with respect to F Co Parent and (ii) 180 days following the Closing with respect
to all Shareholders other than F Co Parent (each, an "Other Shareholder"), such
Shareholder shall not Transfer or agree to Transfer, or permit any of its
Affiliates to Transfer or agree to Transfer, directly or indirectly, any Voting
Securities; provided, however, that the foregoing restrictions shall not be
applicable to Transfers:
(A) by a Shareholder or any of its Affiliates to the Company
pursuant to Section 3.1(b);
(B) to an Affiliate of a Shareholder which agrees in writing
with the Company to be bound by this Agreement as if it were an initial
signatory hereto;
(C) by any Other Shareholder from and after the 90th day
following the Closing through the 180th day following the Closing, of up to 50%
of the Voting Securities owned by such Other Shareholder immediately after the
Effective Time;
(D) with the Company's prior written consent (approved by the
Requisite Independent Directors) or at the request of the Requisite Independent
Directors, provided, however, that any Transfer by F Co Parent or any of its
Affiliates pursuant to this clause (iv) shall also be subject to and conditioned
on the receipt of Unaffiliated Shareholder Approval; or
(E) by any Shareholder pursuant to a Sale of the Company;
provided, however, that in no event shall a Sale of the Company for such
purposes be deemed to include a Transfer by F Co Parent or its Affiliates of all
or any portion of the Voting Securities held by F Co Parent and its Affiliates
unless undertaken pursuant to a transaction or series of related transactions
that also involve the Transfer of at least 66.667% of the Voting Securities not
Beneficially Owned by F Co Parent and its Affiliates.
(b) Each Shareholder (other than Evercore) agrees to notify F Co
Parent of its intentions to Transfer a substantial block of Voting Securities in
compliance with this Agreement, and if requested by F Co Parent, such
Shareholder will negotiate terms upon which such Shareholder would Transfer such
substantial block (or a portion thereof) to F Co Parent, but in no event shall
any Shareholder be obligated to Transfer any such Voting Securities to F Co
Parent or negotiate with F Co Parent with respect to such transfer for a period
longer than 3 days. Any Shareholder's obligation to negotiate with F Co Parent
under this Section 4.2(b) shall be conditioned upon F Co Parent's agreement to
hold as confidential and not to publicly disclose, prior to the closing of a
Transfer of the subject Voting Securities, any such notification or
negotiations. No Shareholder shall be obligated to notify F Co Parent of its
intentions to transfer Voting Securities if such Shareholder reasonably
believes, after consultation with legal counsel, that F Co Parent may have an
obligation under applicable law to disclose, prior to the closing of the
Transfer of the subject Voting Securities, the existence or contents of any
notification
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hereunder. Any Transfer by a Shareholder to its partners as a distribution in
kind shall not be subject to the requirements of this Section 4.2(b).
4.3 LEGEND ON SECURITIES.
(a) Each certificate representing shares of Common Stock
Beneficially Owned by a Shareholder or its Affiliates and subject to the terms
of this Agreement shall bear the following legends on the face thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER LIMITATIONS SET FORTH IN A
CERTAIN SHAREHOLDERS AGREEMENT DATED AS OF SEPTEMBER 14, 2005, AMONG
CERTEGY INC. (THE "COMPANY") AND CERTAIN OF ITS SHAREHOLDERS, AS THE SAME
MAY BE AMENDED FROM TIME TO TIME (THE "AGREEMENT"), COPIES OF WHICH
AGREEMENT ARE ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY."
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD UNLESS
IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION
FROM REGISTRATION IS AVAILABLE (AND, IN SUCH CASE, IF REQUESTED BY THE
COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
SHALL HAVE BEEN DELIVERED TO THE COMPANY TO THE EFFECT THAT SUCH OFFER OR
SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE SECURITIES ACT)."
(b) Upon any acquisition by a Shareholder or any of its Affiliates
of additional shares of Common Stock, such Shareholder shall, or shall cause
such Affiliate to, submit the certificates representing such shares of Common
Stock to the Company so that the legend required by this Section 4.3 may be
placed thereon (if not so endorsed upon issuance).
(c) The Company may make a notation on its records or give
instructions to any transfer agents or registrars for the Common Stock in order
to implement the restrictions on Transfer set forth in this Agreement.
(d) In connection with any Transfer of shares of Common Stock, the
transferor shall provide the Company with such customary certificates, opinions
and other documents as the Company may reasonably request to assure that such
Transfer complies fully with this Agreement and with applicable securities and
other laws.
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ARTICLE 5
GOVERNANCE
5.1 NON-COMPETITION.
(a) For a period (the "Term") commencing on the date hereof and
continuing until the first anniversary of the date (the "Separation Date") F Co
Parent and its Affiliates cease to Beneficially Own at least 30% of the
outstanding Voting Securities of the Company, F Co Parent agrees that it shall
not, and shall cause its Affiliates not to, directly or indirectly, own, manage,
operate, control or participate in the ownership, management, operation or
control, other than their ownership, operation and control of the Company and
its subsidiaries, any business, whether in corporate, proprietorship or
partnership form or otherwise, engaged in a Competitive Business. For purposes
of this Section 5.1, "Competitive Business" shall mean:
(i) providing (A) retail bank core processing systems, (B)
customer channel-solutions (online-retail and commercial, ATM, branch, teller
and call center), (C) consumer and commercial lending and servicing systems,
including mortgage loan origination and servicing systems, and (D) data center
outsourcing services to credit unions, community banks, thrifts, data centers,
banks and other financial institutions;
(ii) providing real estate tax, credit, flood, default and
appraisal services and multiple listing software and services to financial
institutions and loan servicers; or
(iii) credit card and debit card processing and back-office
support services to banks, credit unions, retailers and other third-party
businesses and check cashing and check risk management and related processing
products and services to businesses.
(b) Notwithstanding the foregoing, nothing contained in this
Agreement shall prevent F Co Parent from:
(i) engaging in any of the activities set forth on Schedule 2
hereto ("Permitted Competitive Business Activity");
(ii) acquiring control of a business engaged in a Competitive
Business (an "Acquisition") and continuing to conduct such Competitive Business
if, and only if, F Co Parent first presents the opportunity to make the
Acquisition to the Board and the Requisite Independent Directors disclaim the
Company's interest in such opportunity after F Co Parent's disclosure of all
material facts concerning the opportunity then known to F Co Parent; provided
that, F Co Parent consummates the Acquisition on the same terms presented to the
Board. Notwithstanding the foregoing, nothing contained in this clause (b)(ii)
shall permit F Co Parent to conduct any activities that constitute a Competitive
Business through such acquired entity if such type of activities were not
conducted by the acquired entity at the time of the Acquisition;
(iii) acquiring control of a business (A) which earns less
than 10% of its annual revenues from engaging in a Competitive Business ("Minor
Competitive Activity"); provided, however that such Minor Competitive Activity
shall comprise less than 10% of the annual revenues of the acquired business
during the entire Term, or (B) which earns more than 10%, but less than 50% of
its annual revenues from engaging in a Competitive Business
12
("Divestible Competitive Activity"); provided, however that such Divestible
Competitive Activity shall be offered to the Company within thirty (30) days
after closing the acquisition of such Divestible Competitive Activity at a price
equal to that paid by the F Co Parent or its Affiliate or, if such price was not
separately determined, at fair market value as determined by mutual consent of
the parties or a mutually agreed upon appraisal process; or
(iv) being a passive owner of less than five percent (5%) of
the outstanding stock of a corporation which is publicly traded and is engaged
in a Competitive Business.
5.2 INTERCOMPANY AGREEMENTS AND RELATED MATTERS.
(a) No material provision of any of the Intercompany Agreements or
any other contract or arrangement which involves payments by any party of more
than $250,000 annually in the aggregate, between the Company and any of its
Subsidiaries on the one hand and F Co Parent or its Affiliates on the other,
shall be amended, waived or otherwise modified in a manner adverse to the
Company unless approved in advance by the Requisite Independent Directors. No
obligation or liability of F Co Parent or any of its Affiliates to the Company
or any of its Subsidiaries in excess of $250,000 shall be waived, released,
compromised, or failed to be enforced by the Company and its Subsidiaries unless
such waiver, release, compromise or failure is approved in advance by the
Requisite Independent Directors
(b) Neither the Company nor any of its Subsidiaries shall be
permitted to enter into or be a party to any transaction, contract or
arrangement which involves payments by any party of more than $250,000 annually
in the aggregate, with F Co Parent or any Subsidiary thereof, or any director,
officer or employee of, or any "associate" (as defined in Rule 12b-2 promulgated
under the Exchange Act) of any such person, except for transactions contemplated
by this Agreement, the Intercompany Agreements, and the Merger Agreement, unless
approved in advance by the Requisite Independent Directors.
5.3 APPROVAL RIGHTS. Until F Co Parent and its Affiliates no longer
Beneficially Own Voting Securities representing at least 30% of the Total Voting
Power, the Company shall not take any of the following actions without the
consent of F Co Parent: (i) hiring and firing the Chief Executive Officer or
Chief Financial Officer of the Company; and (ii) approving the annual operating
and capital expenditure budget of the Company.
5.4 COMPOSITION OF THE BOARD.
(a) Effective as of the Effective Time, the authorized number of
Directors comprising the Board shall initially be 10, divided into three classes
as provided in the Charter, consisting of:
(i) three (3) individuals selected by the Board prior to the
filing date of the definitive Proxy Statement (as such term is defined in the
Merger Agreement) to occupy one seat in each of the three classes (the "C Co
Directors");
(ii) the individual then serving as the Chief Executive
Officer of the Company, for so long as such individual holds such position (who
shall be a Class 2 Director);
13
(iii) four (4) individuals designated by F Co Parent prior to
the expected filing date of the definitive Proxy Statement, one of whom shall be
Xxxxxxx X. Xxxxx, XX (the "F Co Parent Directors"), with Xx. Xxxxx and one (1)
other F Co Parent Director to be Class 1 Directors, one (1) F Co Parent Director
to be a Class 2 Director, and one (1) F Co Parent Director to be a Class 3
Director;
(iv) one (1) individual designated by Xxxxxx X. Xxx Parallel
Fund V, L.P. (the "THL Director"), (who shall be a Class 1 Director), who shall
initially be Xxxxxx X. Xxxxxxx and who shall be such director so long as he is a
principal of THL (or equivalent or higher ranking employee of THL), provided
that any director replacing the initial THL Director shall always be an
individual who is a principal of THL (or equivalent or higher ranking employee
of THL); and
(v) one (1) individual designated by TPG Partners IV, L.P.
(the "TPG Director"), (who shall be a Class 3 Director), who shall initially be
Xxxxxxxx Xxxxxx and who shall be such director so long as he is a principal of
TPG (or equivalent or higher ranking employee of TPG), provided that any
director replacing the initial TPG Directors shall always be an individual who
is a principal of TPG (or equivalent or higher ranking employee of TPG).
(b) The Company and F Co Parent shall each provide written notice to
the other, not less than 5 Business Days prior to the expected filing date of
the definitive Proxy Statement of the individuals who shall be designated as the
initial three C Co Directors and the four F Co Parent Directors pursuant to
Section 5.4(a), provided, however, that if either the Company or F Co Parent has
not selected their respective nominees by such date, then notwithstanding the
foregoing, the Company or F Co Parent, as the case may be, shall instead provide
such notice at least 5 Business Days prior to the expected date of the Closing
(or if such period of notice is not practicable under the circumstances because
an individual who has been so designated is no longer available for such
service, such prior notice as is practicable), and provided, further that
designation of the initial C Co Directors shall be subject to the prior written
consent of F Co Parent, which consent shall not be unreasonably withheld.
(c) Except as provided in Section 5.4(d), the size and composition
of the Board may thereafter be changed as permitted by and in accordance with
applicable law and the Charter and the Bylaws; provided, however, that none of F
Co Parent or its Affiliates shall vote its shares or otherwise act to remove any
person serving as a C Co Director prior to expiration of such Director's term
other than for cause.
(d) Following the Effective Time, the Board shall include (i) the
individual then serving as the Chief Executive Officer of the Company, for so
long as such individual holds such position, (ii) the F Co Parent Directors, for
so long as F Co Parent remains a party to this Agreement; (iii) the THL
Director, for so long as THL owns at least one-third (33%) of the Voting
Securities held by it immediately after the Effective Time (subject to
adjustment for stock splits, combinations and similar events); (iv) the TPG
Director, for so long as TPG owns at least one-third (33%) of the Voting
Securities held by it immediately after the Effective Time (subject to
adjustment for stock splits, combinations and similar events); and (v) such
number of Independent Directors as is necessary to have in office at all times
not less than three (3) Independent Directors.
14
(e) Subject to subsection (d) above and until such time as such
Committees must be comprised entirely of Independent Directors in accordance
with the listing standards of the New York Stock Exchange, the Compensation
Committee of the Board shall include one of either the THL Director and the TPG
Director. The THL Director and TPG Director shall rotate their position on the
Compensation Committee each year.
(f) No party shall designate a Director (i) who has been removed for
cause from the Board, (ii) has ever been convicted of a felony, or (iii) is or,
within 10 years prior to the date of designation, has been subject to any
permanent injunction for violation of any federal or state securities law.
5.5 VOTING AGREEMENTS.
(a) Each Shareholder (other than Evercore) hereby agrees that it
will vote, or cause to be voted, all Voting Securities over which such Person
has the power to vote or direct the voting (and which are entitled to vote on
such matter), and will take all other necessary or desirable actions within such
Person's control in favor of the election of each candidate designated or
nominated for election pursuant to Section 5.4. If at any time any such Director
ceases to serve on the Board (whether due to resignation, removal or otherwise),
the Company shall nominate and the Shareholders shall vote in favor of a
successor to fill the vacancy created thereby on the terms and subject to the
conditions of Section 5.4. Each Shareholder (other than Evercore) agrees to
vote, or cause to be voted, all Voting Securities over which such Person has the
power to vote or direct the voting, and shall take all such other actions as
shall be necessary or desirable to cause the designated successor to be elected
to fill such vacancy.
(b) Nothing in this Agreement shall be construed to impair any
rights that the shareholders of the Company may have to remove any Director for
cause under applicable law, the Charter or Bylaws. No such removal of an
individual designated pursuant to Section 5.4 for cause shall affect any of the
Shareholders' rights to designate a different individual pursuant to Section 5.4
to fill the position from which such individual was removed.
5.6 NYSE LISTING. Except following the completion of a Going Private
Transaction conducted in accordance with Section 3.2 or with the prior consent
of the Requisite Independent Directors, F Co Parent will not take or cause the
Company to take any action to delist, or that would reasonably be expected to
result in the delisting of, the Common Stock from a national securities
exchange; provided that nothing in this Section 5.5 shall require F Co Parent or
any of its Affiliates to take any affirmative action to prevent the Common Stock
from being delisted by any such national securities exchange in the event that
the Common Stock ceases to meet the applicable listing standards of such
national securities exchange.
ARTICLE 6
MISCELLANEOUS
6.1 NOTICES. Any notice, direction or other communication to be given
under this Agreement shall be in writing and given by delivering it or sending
it by facsimile or other similar form of recorded communication addressed:
15
If to the Company (prior to the Effective Time):
Certegy Inc.
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 0000X
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with copies to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: W. Xxxxxxx Xxxxxxxxx, Esq.
Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxxxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Attention Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
and
Xxxxxxxxx & Xxxxxxx
1330 Avenue of the Americas
Xxx Xxxx, XX 00000
Attention Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the Company (after the Effective Time):
Fidelity National Information Services, Inc
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx
Facsimile No.: (000) 000-0000
16
with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx
Facsimile: (000) 000-0000
If to F Co Parent:
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx
Facsimile: (000) 000-0000
If to THL:
Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx and Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to TPG:
Texas Pacific Group
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
If to Evercore:
Evercore Partners
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If for the Company or any of the Shareholders, with copies to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
If for TPG, with copies to
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
If for Evercore, with copies to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
Any such communication shall be deemed to have been validly and effectively
given (i) if personally delivered, on the date of such delivery if such date is
a business day and such delivery was made prior to 4:00 p.m. (New York time) and
otherwise on the next business day, or (ii) if transmitted by facsimile or
similar means of recorded communication on the business day following the date
of transmission. Any party may change its address for service from time to time
by notice given in accordance with the foregoing and any subsequent notice shall
be sent to such party at its changed address.
6.2 AMENDMENTS; TERMINATION. This Agreement may be amended, supplemented
or otherwise modified only by written agreement of each of the following that
are then parties to this Agreement: the Company (acting with the approval of the
Requisite Independent Directors), F Co Parent, THL and TPG. Each party hereto
shall cease to be a party to this Agreement at such time as such party owns less
than 10% of the number of shares of Common Stock of the Company that such party
owns as of the date of the Closing and set forth on Schedule 3 hereto
18
(as adjusted for any stock splits, stock dividends or equivalent transactions).
Except as otherwise provided in this Agreement, this Agreement and the rights
and obligations of the parties hereunder shall terminate upon the first date on
which F Co Parent and its Affiliates Beneficially Own either (i) Voting
Securities representing less than 10% of the Total Voting Power, or (ii) 90% or
more of each class of Capital Stock of which ownership would be required in
order to effect a merger pursuant to Section 14-2-1104 of the GBCC or any
successor provision (acquired in compliance with the terms of this Agreement).
This Agreement will terminate in respect of all Shareholders upon the
consummation of a Going Private Transaction or Sale of the Company. Nothing in
this Section 6.2 shall be deemed to release any party from any liability for any
willful and material breach of this Agreement occurring prior to the termination
hereof or to impair the right of any party to compel specific performance by any
other party of its obligations under this Agreement.
6.3 WAIVER. No waiver of any of the provisions of this Agreement shall be
deemed to constitute a waiver of any other provision (whether or not similar)
nor shall such waiver be binding unless executed in writing by the party to be
bound by the waiver. No failure on the part of any party to exercise, and no
delay in exercising, any right under this Agreement shall operate as a waiver of
such right; nor shall any single or partial exercise of any such right preclude
any other or further exercise of such right of the exercise of any other right.
All actions and decisions of the Company relating to the enforcement of this
Agreement shall be exercised by or under the authority of the Requisite
Independent Directors.
6.4 SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the rights
or obligations under this Agreement is assignable or transferable by any party
without the prior written consent of the other parties. This Agreement is
binding upon and inures to the benefit of the parties and their respective
successors and permitted assigns. For this purpose, a successor includes any
person that acquires control of all or substantially all the assets of one of
the parties.
6.5 SEVERABILITY. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and the
remaining provisions shall not in any way be affected or impaired thereby.
6.6 GOVERNING LAW. This Agreement is governed by and interpreted and
enforced in accordance with the laws of the State of New York without regards to
principles of conflicts of law State (other then those provisions set forth
herein that are required to be governed by the GBCC). Each party hereto
irrevocably submits to the non-exclusive jurisdiction of the courts of the State
of New York with respect to any matters arising hereunder or relating hereto.
6.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all such counterparts taken together are deemed to constitute
one and the same instrument.
6.8 ENTIRE AGREEMENT. Except as otherwise expressly set forth herein, this
Agreement and the Merger Agreement, together with the several agreements and
other documents and instruments referred to herein or therein or annexed hereto
or thereto, embody the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, that may have related to the subject
19
matter hereof in any way. Without limiting the generality of the foregoing, to
the extent that any of the terms hereof are inconsistent with the rights or
obligations of the Shareholders under any other agreement with the Company, the
terms of this Agreement shall govern.
6.9 ESTOPPEL. No failure or delay in exercising any right, power or
privilege under this Agreement will operate as a waiver thereof, nor will any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right, power or privilege under this Agreement.
6.10 CONFLICTING AGREEMENTS. Each party represents and warrants that it
has not granted and is not a party to any proxy, voting trust or other agreement
that is inconsistent with or conflicts with any provision of this Agreement.
6.11 EFFECTIVENESS. Except for the provisions of Sections 5.4(a)(i),
5.4(a)(iii) and 5.4(b) (relating to the designation of the individuals to serve
as the initial C Co Directors and F Co Parent Directors), which are in full
force and effect as of the date hereof, this Agreement shall become effective
upon the Closing and prior thereto shall be of no force or effect. If the Merger
Agreement shall be terminated in accordance with its terms prior to the Closing,
this Agreement (including the provisions of Section 5.4) shall automatically be
of no force or effect.
* * * * *
20
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement on the day and year first above written.
COMPANY:
CERTEGY INC.
By:/s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Chairman and Chief Executive Officer
SHAREHOLDERS:
FIDELITY NATIONAL FINANCIAL, INC.
By:/s/ Xxxxxxx X. Xxxxx, XX
Name: Xxxxxxx X. Xxxxx, XX
Title: Chairman and Chief Executive Officer
THL FNIS HOLDINGS, LLC
By: THL Equity Advisors V, LLC, its manager
By: Xxxxxx X. Xxx Partners, L.P., its sole member
By: Xxxxxx X. Xxx Advisors LLC, its general partner
By:/s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Managing Director
XXXXXX X. XXX CAYMAN FUND V, L.P.
By: THL Equity Advisors V, LLC, its general partner
By: Xxxxxx X. Xxx Partners, L.P., its sole member
By: Xxxxxx X. Xxx Advisors LLC, its general partner
By:/s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Managing Director
XXXXXX X. XXX INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp., its
general partner
By:/s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Chief Executive Officer
XXXXXX INVESTMENTS EMPLOYEES' SECURITIES COMPANY I LLC
By: Xxxxxx Investment Holdings, LLC, its
managing member
By: Xxxxxx Investments, LLC, its managing member
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Managing Director
XXXXXX INVESTMENTS EMPLOYEES' SECURITIES COMPANY
II LLC
By: Xxxxxx Investment Holdings, LLC, its managing member
By: Xxxxxx Investments, LLC, its managing member
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Managing Director
XXXXXX INVESTMENT HOLDINGS, LLC
By: Xxxxxx Investments, LLC, its managing member
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Managing Director
TPG FNIS HOLDINGS, LLC
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
TPG PARALLEL III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
TPG INVESTORS III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
FOF PARTNERS III, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
FOF PARTNERS III-B, L.P.
By: TPG GenPar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
TPG DUTCH PARALLEL III, C.V.
By: TPG GenPar Dutch, L.L.C.
By: TPG Genpar III, L.P.
By: TPG Advisors III, Inc.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
EVERCORE METC CAPITAL PARTNERS II L.P.
By: Evercore Partners II L.L.C., its General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Managing Partner
SCHEDULE 1
INTERCOMPANY AGREEMENTS
Corporate Services Agreement dated March 4, 2005 between F Co Parent and Company
Reverse Corporate Services Agreement dated March 4, 2005 between F Co Parent and
Company
Tax Matters Agreement dated March 4, 2005 between F Co Parent and Company
Employee Matters Agreement dated March 4, 2005 between F Co Parent and Company
Intellectual Property Cross License Agreement dated March 4, 2005 between F Co
Parent and Company
Starters Repository Access Agreement dated March 4, 2005 between F Co Parent and
Company
Property Insight -- Master Title Plan Access Agreement dated March 4, 2005
between Property Insight and Subsidiaries of F Co Parent
Title Plant Maintenance Agreement dated March 4, 2005 among Property Insight,
LLC, Security Union Title Insurance Company, Chicago Title Insurance Company and
Ticor Title Insurance Company
Title Plant Management Agreement dated March 4, 2005 between Property Insight,
LLC and Ticor Title Insurance Company of Florida
Cost Sharing Agreement dated March 4, 2005 among Rocky Mountain Support
Services, Inc., Security Union Title Insurance Company, Chicago Title Insurance
Company, Ticor Title Insurance Company and certain other Subsidiaries of F Co
Parent
Master Services Agreement dated January 1, 2005 between F Co Parent and Fidelity
Information Services, Inc.
Titlepoint Software Development & Property Allocation Agreement dated March 4,
2005 between Rocky Mountain Support Services, Inc. and Property Insight, LLC
eLender Solutions Software Development & Property Allocation Agreement dated
March 4, 2005 between Rocky Mountain Support Services, Inc. and LSI Title
Company
Softpro Software License Agreement dated March 4, 2005 between F Co Parent and
Fidelity National Information Solutions, Inc.
Team Software License Agreement dated March 4, 2005 between Rocky Mountain
Support Services, Inc. and Fidelity National Tax Service, Inc.
Simon Software License Agreement dated March 4, 2005 between Rocky Mountain
Support Services, Inc. and Fidelity National Tax Service, Inc.
OTS & OTS Gold Software License Agreement dated March 4, 2005 between Rocky
Mountain Support Services, Inc. and Fidelity National Tax Service, Inc.
Cross Conveyance and Joint Ownership Agreement dated March 4, 2005 between LSI
Title Company and Rocky Mountain Support Services, Inc.
License and Services Agreement dated March 4, 2005 between F Co Parent and
Company
Back Plant Repository Access Agreement dated March 4, 2005 between F Co Parent
and Company
Lease Agreement January 1, 2005 between Company and F Co Parent
SCHEDULE 2
Title insurance underwriting
Title insurance agency services
Escrow and closing services
Title insurance on foreclosure transactions
Sales of title information
Title plant maintenance
Title and escrow system software development and sales of software
Title recording services
Real estate information sold in connection with providing title and escrow
services
Relocation services
Real estate appraisal services(1)
Property inspection services
Any insurance business
Real estate default and foreclosure services(1)
Loan processing and fulfillment services conducted by F Co Parent Canada for
banks in Canada.(1)
----------
(1) Such activities are Permitted Competitive Business Activities only if and
so long as they do not constitute a material amount of F Co Parent's revenues.
SCHEDULE 3
Name Number of Subject Shares
of Shareholder Owned of Record or Beneficially
------------------------------------------------------- -------------------------------
THL FNIS Holdings, LLC
Xxxxxx H, Xxx Equity (Cayman) Fund V, X.X.
Xxxxxx Investment Holdings, LLC
Xxxxxx Investments Employees' Securities Company I LLC
Xxxxxx Investments Employees' Securities Company II LLC
Xxxxxx X. Xxx Investors Limited Partnership
TPG FNIS Holdings, LLC
TPG Parallel III, L.P.
TPG Investors III, L.P.
FOF Partners III, L.P.
FOF Partners III-B, L.P.
TPG Dutch Parallel III, C.V.
Evercore METC Capital Partners II, L.P.
Fidelity National Financial, Inc.
-------------------
Total
===================
