Exhibit 99.2
EXECUTION COPY
STOCKHOLDERS AGREEMENT
DATED ________________, 2006
AMONG
FIDELITY SEDGWICK HOLDINGS, INC.,
FIDELITY SEDGWICK CORPORATION
AND
THE OTHER PARTIES HERETO
TABLE OF CONTENTS
PAGE
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ARTICLE I REPRESENTATIONS AND WARRANTIES OF THE PARTIES....................................... 1
1.1 Representations and Warranties of the Company. ...................................... 1
1.2 Representations and Warranties of FSC. FSC........................................... 2
1.3 Representations and Warranties of the Stockholders.................................... 2
ARTICLE II VOTING AGREEMENTS AND COVENANTS..................................................... 3
2.1 Election of Directors; Committees..................................................... 3
2.2 Voting Required for Action............................................................ 6
2.3 2006 Stock Incentive Plan............................................................. 8
ARTICLE III TRANSFERS OF SHARES................................................................. 9
3.1 Restrictions on Transfer of Shares.................................................... 9
3.2 Right of First Refusal; Tag-Along Rights.............................................. 10
3.4 Transfers in Violation of Agreement................................................... 15
ARTICLE IV TAKE-ALONG RIGHT.................................................................... 15
4.1 Right of First Offer.................................................................. 15
4.2 Take-Along Right...................................................................... 15
ARTICLE V PRE-EMPTIVE RIGHTS.................................................................. 17
5.1 Issuance of New Shares................................................................ 17
ARTICLE VI BOARD OBSERVERS AND ACCESS.......................................................... 18
6.1 Board Representation and Access....................................................... 18
6.2 Information Rights.................................................................... 20
6.3 Confidentiality....................................................................... 20
ARTICLE VII AMENDMENT AND TERMINATION........................................................... 21
7.1 Amendment and Waiver.................................................................. 21
7.2 Termination of Agreement.............................................................. 21
7.3 Termination as to a Party............................................................. 21
ARTICLE VIII MISCELLANEOUS....................................................................... 21
8.1 Certain Defined Terms................................................................. 21
8.2 Legends............................................................................... 27
8.3 Severability.......................................................................... 27
8.4 Entire Agreement...................................................................... 28
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8.5 Successors and Assigns................................................................ 28
8.6 Counterparts.......................................................................... 28
8.7 Remedies.............................................................................. 28
8.8 Notices............................................................................... 28
8.9 Governing Law......................................................................... 31
8.10 Descriptive Headings.................................................................. 31
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STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is entered into as of
______________, 2006 by and among (i) Fidelity Sedgwick Holdings, Inc., a
Delaware corporation (the "Company"), (ii) Fidelity Sedgwick Corporation, a
Delaware corporation ("FSC"), (iii) THL Equity Fund V Bridge Corp., THL Parallel
Fund V Bridge Corp., THL Cayman Fund V Bridge Corp., 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) Evercore Capital Partners
II L.P. and Evercore Co-Investment Partnership II L.P. (collectively,
"Evercore"), and (v) Fidelity National Financial, Inc. ("FNF"). THL and Evercore
are each referred to herein as a "Sponsor," and collectively, the "Sponsors."
The Sponsors, FNF, each other Person who (a) purchases Common Stock or Preferred
Stock on the date hereof or (b) hereafter (i) exercises options to purchase
Common Stock, or (ii) purchases restricted Common Stock, pursuant to the
Company's 2006 Stock Incentive Plan (the "SIP") and becomes a party hereto
(each, a "Management Holder"), and each other Person that is or may become a
party to this Agreement as contemplated hereby are sometimes referred to herein
collectively as the "Stockholders" and individually as a "Stockholder." Certain
capitalized terms used herein are defined in Section 8.1.
The parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
1.1 Representations and Warranties of the Company. The Company
hereby represents and warrants to each Stockholder that as of the date of this
Agreement:
(a) the Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, 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 the Company 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.
1.2 Representations and Warranties of FSC. FSC hereby represents and
warrants to each Stockholder that as of the date of this Agreement:
(a) FSC is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, 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 FSC and constitutes a legal and binding obligation of FSC enforceable against
it in accordance with its terms; and
(c) the execution, delivery and performance by FSC of this Agreement
and the consummation by FSC 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 FSC is subject, (ii)
violate any order, judgment or decree applicable to FSC or (iii) conflict with,
or result in a breach or default under, any term or condition of FSC's
organizational documents or any agreement or instrument to which FSC is a party
or by which it is bound.
1.3 Representations and Warranties of the Stockholders. Each
Stockholder (as to himself or itself only) represents and warrants to the
Company and FSC that, as of the time such Stockholder becomes a party to this
Agreement:
(a) if not an individual, it 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, 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, partnership or
limited liability company action.
(b) this Agreement (or the separate joinder agreement executed by
such Stockholder) has been duly and validly executed and delivered by such
Stockholder, and this Agreement constitutes a legal and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with its
terms; and
(c) the execution, delivery and performance by such Stockholder of
this Agreement (or any joinder to this Agreement, if applicable) and the
consummation by such Stockholder of the transactions contemplated hereby (and
thereby, if applicable) 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 Stockholder is subject, (ii) violate any order, judgment or decree
applicable to such Stockholder or (iii) conflict with, or result in a breach or
default under, any
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term or condition of any agreement or other instrument to which such Stockholder
is a party or by which such Stockholder is bound.
ARTICLE II
VOTING AGREEMENTS AND COVENANTS
2.1 Election of Directors; Committees.
(a) Each Person, other than the Company and FSC, that is a party to
this Agreement hereby agrees that such Person will vote, or cause to be voted,
all Common Shares over which such Person has the power to vote or direct the
voting, and will take all other necessary or desirable actions within such
Person's control, and the Company will take all necessary or desirable actions
within its control, to cause the authorized number of directors to be
established at up to seven (7) directors (subject to increase as permitted under
Section 2.1(b) or 2.2(a)(xi)), and to elect or appoint or cause to be elected or
appointed to the board of directors of the Company (the "Board") and cause to be
continued in office, the following individuals, in each case subject to the
provisions of subparagraphs (b) and (c) below:
(i) one (1) director designated by Xxxxxx X. Xxx Equity Fund V,
L.P. and one (1) director designated by Xxxxxx X. Xxx Parallel
Fund V, L.P. (collectively, the "THL Directors"), who shall
initially be Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx and who shall
be such directors so long as they are principals of THL (or
equivalent or higher ranking employees of THL), provided that
any directors replacing the initial THL Directors shall always
be individuals who are principals of THL (or equivalent or
higher ranking employees of THL);
(ii) one (1) director designated by Evercore Capital Partners II
L.P. (the "Evercore Director"), who shall initially be Xxxxxx
X. Xxxxxxx and who shall be a director so long as he is a
principal of Evercore (or equivalent or higher ranking
employee of Evercore), provided that any director replacing
the initial Evercore Director shall always be an individual
who is a principal of Evercore (or equivalent or higher
ranking employee of Evercore);
(iii) two (2) directors designated by FNF (the "FNF Directors"), who
shall initially be Xxxxxxx X. Xxxxx, XX and Xxxxx Xxxxxxx; and
(iv) two (2) directors from the senior management of the Company
and its subsidiaries (the "Management Directors"), who shall
initially be Xxxxx Xxxxx and Xxxxx Wierterlak, with any
successor to be reasonably acceptable to the directors
designated by each of FNF and THL.
(b) Notwithstanding the designation rights above, for so long as the
Sponsors collectively own at least 50% of the outstanding shares of Common Stock
held by the Sponsors and FNF, the Sponsors shall have the right to designate 50%
of the number of directors of the Board, and upon exercise of such right by the
Sponsors, the Company and the other Stockholders
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shall take all reasonable actions required to effect such rights, including by
increasing or decreasing the number of directors comprising the Board and
removing or electing new directors to the Board; provided, that subject to
subsection (c) hereof, there shall at all times be at least two directors
designated by FNF, neither of which may be removed pursuant to this subsection
(b). Any new directors designated pursuant to the previous sentence shall be as
mutually agreed by the Sponsors.
(c) If at any time THL or FNF ceases to own at least 33% of the
Common Shares held by it as of the date hereof (subject to adjustment for stock
splits, combinations and similar events), the number of directors THL or FNF, as
the case may be, is entitled to designate shall be decreased by one.
Additionally, if at any time THL or FNF ceases to own at least 20% of the Common
Shares held by it as of the date hereof, or Evercore ceases to own at least 40%
of the Common Shares held by it as of the date hereof (subject to adjustment for
stock splits, combinations and similar events), the number of directors THL or
FNF or Evercore, as the case may be, is entitled to designate shall be zero from
and after such time.
(d) The chairman of the Board (the "Chairman") shall be elected and
all other actions taken by the Board shall be approved by a majority vote of the
Board; provided, however, that Xxxxxxx X. Xxxxx, XX shall be the initial
Chairman until the third anniversary of this Agreement (subject to his earlier
resignation or removal in accordance with by-laws of the Company or this
Agreement).
(e) The Board shall hold no less than one (1) meeting per fiscal
quarter. At each meeting of the Board (or committee thereof) at which a quorum
is present, each director shall be entitled to one vote on each matter to be
voted on at such meeting. A majority of the directors on the Board shall
constitute a quorum.
(f) Any director serving on the Board can be removed without cause
by the Stockholder entitled to designate such director to serve on the Board
hereunder. If at any time any director ceases to serve on the Board (whether due
to resignation, removal or otherwise), the Stockholders shall elect a successor
to fill the vacancy created thereby on the terms and subject to the conditions
of paragraphs (a), (b) and (c) above. Each Person that is a party hereto agrees
to vote, or cause to be voted, all Common Shares 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 removal of a director as provided
in this Section 2.1(f) and the designated successor to be elected to fill such
vacancy.
(g) Nothing in this Agreement shall be construed to impair any
rights that the stockholders of the Company may have to remove any director for
cause under applicable law, the certificate of incorporation of the Company, or
the by-laws of the Company, as the case may be. No such removal of an individual
designated pursuant to this Section 2.1 for cause shall affect any of the
Stockholders' rights to designate a different individual pursuant to this
Section 2.1 to fill the position from which such individual was removed.
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(h) Each member of the Board shall be entitled to reimbursement from
the Company for his or her reasonable out-of-pocket expenses (including travel)
incurred in attending any Board meeting.
(i) For so long as a Sponsor has any designees on the Board, the
Company shall purchase, within a reasonable period following the date hereof,
and maintain for such periods as the Board shall in good faith determine, at the
Company's expense, insurance in an amount determined in good faith by the Board
to be appropriate, on behalf of any person who after the date hereof is or was a
director or officer of the Company or any Subsidiary, or is or was serving at
the request of the Company or any Subsidiary as a director, officer, employee or
agent of another limited company, corporation, partnership, joint venture, trust
or other enterprise, including any direct or indirect subsidiary of the Company,
against any expense, liability or loss asserted against such Person and incurred
by such Person in any such capacity, or arising out of such Person's status as
such, subject to customary exclusions. The provisions of this Section 2.1(i)
shall survive any termination of this Agreement. The Company shall indemnify the
directors in accordance with the Company's certificate of incorporation and each
indemnification agreement entered into by the Company and such director.
(j) There shall be established at all times during the term of this
Agreement a Compensation Committee of the Board (the "Compensation Committee")
which shall be comprised of THL Directors, Evercore Directors and FNF Directors
equal to or in proportion to the number of designees in Section 2.1(a) and (c)
above (before taking into account any Management Directors) or as otherwise
agreed to by THL, Evercore and FNF. The Compensation Committee will (i)
determine the compensation of all senior employees and consultants of the
Company (including salary, bonus, equity participation and benefits) and (ii)
subject to Section 2.2(a)(ii) hereof, approve the grants of any options or
awards (after consultation with the Chief Executive Officer of the Company)
under, or amendments to or replacement of, the SIP and the repurchases of any
stock under the terms of the SIP; provided that no member of the Compensation
Committee may vote on his own compensation or option or award grant.
Notwithstanding the foregoing, the initial members of the Compensation Committee
shall be Xxxxxxx X. Xxxxx, XX, Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx.
(k) There shall be established at all times during the term of this
Agreement an Audit Committee of the Board (the "Audit Committee") comprised of
THL Directors, Evercore Directors and FNF Directors equal to or in proportion to
the number of designees in Section 2.1(a) and (c) above (before taking into
account any Management Directors). The Audit Committee shall determine the
Company's audit policies, review audit reports and recommendations made by the
Company's internal audit staff and its independent auditors, meet with the
Company's independent auditors, oversee the independent auditors, and recommend
the Company's engagement of independent auditors.
(l) All other committees that may be established by the Board from
time to time shall be comprised of THL Directors, Evercore Directors and FNF
Directors equal to or in proportion to the number of designees in Section 2.1(a)
and (c) above (before taking into account any Management Directors).
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(m) The Company and FSC shall take all actions necessary to make the
board of directors (and any committees thereof) of FSC and SCMS consist of the
same number of directors (or committee members) and members as the Board. The
Company and FSC shall take all actions necessary to make the board of directors
(and any committees thereof) of all other Subsidiaries of the Company consist of
such persons as the Board shall direct.
(n) Any transactions between the Company and Affiliates of the
Company (including Affiliates of the Stockholders) (other than Exempted
Arrangements and other agreements executed on the date hereof) shall require the
approval of a majority of the directors that are disinterested with respect to
such transactions.
2.2 Voting Required for Action.
(a) Until the earliest to occur of (i) the fifth anniversary of the
date hereof, (ii) the first Public Offering and (iii) a Sale of the Company, the
following actions by the Company or any of its Subsidiaries shall require the
approval of (X) the holders of at least a majority of the Common Shares then
held by FNF and its Permitted Transferees, and (Y) the holders of at least a
majority of the Common Shares then held by THL and its Permitted Transferees
(together, the "Major Holders"):
(i) the approval of the annual operating budget and capital
expenditure budget of the Company and its Subsidiaries and any
interim modification or deviation in excess of 5% in any line
item thereof,
(ii) any authorization, reservation for issuance or issuance of
capital stock of the Company or its Subsidiaries, including
any options, warrants or securities convertible into capital
stock of the Company or its Subsidiaries, except for the
initial options to purchase 3,600,000 shares under the SIP
contemplated by Section 2.3 hereof and shares issued in an
exchange contemplated under Section 3.3(g),
(iii) any amendments to the certificate of incorporation or bylaws
of the Company or any of its Subsidiaries in a manner which
adversely affect the rights of FNF or the Sponsors or which
adversely affect the indemnification or exculpation of any
director of the Company,
(iv) the election, removal, delegation or amendment of power or
authority, and compensation of the Chief Executive Officer,
Chief Operating Officer or the Chief Financial Officer of the
Company or any of its Subsidiaries,
(v) the acquisition, by merger or consolidation, or by purchase
of, or investments in, all or substantially all of the assets
or stock of, any business or any corporation, partnership,
joint venture, limited liability company, association or other
business organization or division thereof, in excess of
$10,000,000 per transaction or series of related transactions,
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(vi) subject to the rights of the Initiating Stockholders in
Section 4.1, any (A) disposition of any material assets of the
Company, (B) sale of all or substantially all of the assets
of, or liquidation, dissolution or recapitalization of, the
Company or any of its Material Subsidiaries, or (C) change of
control of the Company or a Material Subsidiary, whether
through merger or sale of stock or otherwise, the result of
which is Persons owning voting stock of the Company or such
Material Subsidiary, as the case may be, prior to such
transaction do not hold more than 50% of the voting stock of
the Company or such Material Subsidiary after giving effect to
such transaction,
(vii) the incurrence of any indebtedness for borrowed money by the
Company or any of its Subsidiaries in excess of $10,000,000 in
the aggregate or the granting of any lien or encumbrance on
the assets or pledge of the capital stock of the Company or
its Subsidiaries (other than (A) indebtedness incurred under,
and liens imposed in connection with, debt incurred on the
date hereof, (B) liens or encumbrances granted in the ordinary
course of business consistent with past practice, and (C)
liens or encumbrances on assets having a value of not more
than $5,000,000),
(viii)entering into or effecting any transaction or series of
related transactions in connection with or involving the
repurchase, redemption or other acquisition of capital stock
of the Company (other than any required and up to $1,000,000
in annual optional repurchases of capital stock or options
from employees pursuant to certain repurchase rights under the
SIP and option agreements thereunder) or any Subsidiary,
except as set forth in Section 3.3(b),
(ix) declaring or paying any cash or other dividend or making any
other distribution on the capital stock of the Company or any
of its Subsidiaries other than dividends or other
distributions by a direct or indirect wholly-owned Subsidiary
of the Company to its equity holder,
(x) subject to Section 2.2(c), any Public Offering;
(xi) any change in the number of directors of the Board other than
changes permitted to ensure the proportional representation
based on ownership under Section 2.1(c),
(xii) any (A) commencement of a case, proceeding or other action (1)
under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief
entered with respect to the Company or any of its
Subsidiaries, or seeking to adjudicate the Company or any of
its Subsidiaries a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution,
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composition or other relief with respect to the Company or any
of its Subsidiaries or their debts, or (2) seeking appointment
of a receiver, trustee, custodian or other similar official
for the Company or any of its Subsidiaries or for all or any
substantial part of the assets of the Company or any of its
Subsidiaries, or (B) making of a general assignment for the
benefit of creditors relating to the Company or any of its
Subsidiaries; or
(xiii)committing to do any of the actions provided in (i) through
(xii) above.
(b) The Company agrees to provide each of the Sponsors and FNF
written notice of any proposed action that is approved or denied by the Major
Holders pursuant to Section 2.2(a) within 10 business days following such
approval or denial, as the case may be, which notice shall include a brief
summary of the action taken by the Major Holders.
(c) After the second anniversary of the date hereof, the
holders of a majority of the outstanding Shares held by all Stockholders may
require the Company to complete a Qualified Public Offering pursuant to a demand
registration under the Registration Rights Agreement executed concurrently
herewith.
(d) Notwithstanding anything herein to the contrary, the
approval rights specified in Section 2.2(a) shall terminate (i) with respect to
FNF and its Permitted Transferees at such time as FNF and its Permitted
Transferees own less than 20% of the outstanding Common Stock of the Company,
and (ii) with respect to THL and its Permitted Transferees at such time as THL
and its Permitted Transferees own less than 20% of the outstanding Common Stock
of the Company. No Transferee shall be entitled to approval rights under this
Section 2.2 unless such Transferee is a Permitted Transferee.
(e) Notwithstanding anything herein to the contrary, the
approval rights contained in Section 2.2(a) hereof shall not apply to the
closing of the transactions contemplated by the Merger Agreement (as defined
below).
2.3 2006 Stock Incentive Plan. Promptly following the Closing Date,
the Company will offer to certain key employees and others stock option awards
under the SIP covering an aggregate of 3,600,000 shares of Common Stock, at a
purchase price per share of $7.50.
2.4 Merger Agreement and Related Rights and Obligations.
(a) FNF is party to the Agreement and Plan of Merger dated as
of December 23, 2005 (the "Merger Agreement") by and among FNF, Xmas Merger
Corp. and Sedgwick CMS Holdings, Inc. ("SCMS"). FNF is also a party to the
Shareholder Agreements and the Holder Agreements (as defined in the Merger
Agreement; the Merger Agreement, Shareholder Agreements and Holder Agreements
collectively, the "Indemnity Agreements"). Under the Indemnity Agreements, FNF
and SCMS both have certain rights to be indemnified and held harmless for
certain Taxes (and related fees and costs) and Losses paid or incurred by FNF,
SCMS or any
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Company Subsidiary (as defined in the Merger Agreement). FNF agrees that, to the
extent a Tax (or a related fee or cost) or a Loss is paid or incurred by SCMS or
any Company Subsidiary (any such item, an "SCMS Claim"), FNF will not seek to
obtain indemnification for such SCMS Claim for itself but will instead permit
SCMS or such Company Subsidiary to pursue and obtain indemnification therefor.
The preceding sentence shall not limit the right of FNF to obtain
indemnification for itself or any other Person (as defined in the Merger
Agreement) for any Tax (and related fees and costs) or Loss to the extent not
paid or incurred by SCMS or any Company Subsidiary (an "FNF Claim").
(b) FNF agrees that, as between itself and SCMS, FNF will let
SCMS control the process of pursuing rights to indemnification for any SCMS
Claim; provided that, to the extent a particular claim for indemnification
involves both an SCMS Claim and an FNF Claim (a "Combined Claim"), FNF and SCMS
shall jointly control such process. Any Combined Claim may not be settled
without the consent of both FNF and SCMS, with such consent not to be
unreasonably withheld. FNF agrees that it will take all reasonable actions
requested by the Company to assist SCMS or any Company Subsidiary in obtaining
indemnification for any SCMS Claim under the Indemnity Agreements, including in
obtaining payment thereof from funds held under the Escrow Agreement (as defined
in the Merger Agreement); provided that FNF shall have no obligation to take any
action to secure such indemnification unless so requested. The Company agrees
to, and agrees to cause SCMS to, indemnify and hold harmless FNF from any Losses
incurred as a result of taking any such action requested by the Company and
agrees that FNF shall not be liable to the Company, SCMS or any Company
Subsidiary for any action taken by FNF pursuant to this Section 2.4(b).
(c) Under the Indemnity Agreements and the Escrow Agreement
(collectively, the "FNF Agreements"), FNF has various obligations, including
without limitation obligations to pay amounts, to indemnify and to perform or
cause to be performed certain covenants. The Company agrees that it shall, and
shall cause SCMS to, pay, perform and discharge when due all of FNF's
obligations under the FNF Agreements. To the extent that such substituted
payment, performance and discharge is not accepted by any party to which such an
obligation is due, the Company shall, and shall cause SCMS to, (i) assist FNF in
accomplishing the performance and discharge thereof and (ii) indemnify and hold
harmless FNF with respect to any amount paid or payable by FNF in connection
with or arising out of any such obligation.
(d) As used herein, "Shareholder Agreements" means the
separate Shareholder Agreements, dated as of December 23, 2005, by and among
FNF, Xmas Merger Corp. and the Primary Shareholders (as defined in the Merger
Agreement).
ARTICLE III
TRANSFERS OF SHARES
3.1 Restrictions on Transfer of Shares.
(a) Prior to the third anniversary of the date hereof, no
Stockholder may Transfer any Shares, except (i) with the consent of each of the
Sponsors and FNF, (ii) through a Public Offering, (iii) pursuant to a Sale of
the Company, (iv) through a redemption or share exchange provided in Section 3.3
or (v) through an Exempt Transfer. After the third anniversary of the date
hereof, no Stockholder may Transfer any Shares except through (i) a Public
Offering,
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(ii) a Sale of the Company, (iii) an Exempt Transfer, (iv) through a redemption
or share exchange provided in Section 3.3 or (v) in accordance with Section 3.2
of this Agreement.
(b) No Transfer of any Shares by any Stockholder shall become
effective unless and until the Transferee (unless such Transferee already is
party to this Agreement) executes and delivers to the Company and FSC a
counterpart or joinder to this Agreement, agreeing to the obligations of the
transferring Stockholder. Notwithstanding the immediately preceding sentence, an
unaffiliated financial institution to whom Sponsor Shares have been pledged will
not have to execute this Agreement unless and until such pledge has been
foreclosed upon. Upon such Transfer and such execution and delivery, the
Transferee acquiring Transferred Shares shall be bound by, and entitled to the
benefits of, this Agreement in the same manner as the transferring Stockholder;
provided that no Transferee of FNF or a Sponsor (other than a Permitted
Transferee) shall be entitled to any of the director designation rights under
Section 2.1, the approval rights under Section 2.2(a), the rights of an
Initiating Stockholder under Article IV, or, unless such Transferee is obligated
or reasonably deems it necessary to qualify the Shares as a venture capital
investment (as defined in Department of Labor Regulation CFR Section
2510.3-101), the rights under Article VI.
(c) No Shares may be transferred by a Stockholder (other than
pursuant to an effective registration statement under the Securities Act)
unless, if requested by the Company, such Stockholder first delivers to the
Company an opinion of counsel, which opinion and counsel shall be reasonably
satisfactory to the Company, to the effect that such Transfer is not required to
be registered under the Securities Act.
3.2 Right of First Refusal; Tag-Along Rights.
(a) After the third anniversary of the date hereof, if any
Stockholder (the "Selling Holder") proposes to Transfer any Shares (other than
(i) in a Sale of the Company, (ii) an Exempt Transfer, (iii) in a Public
Offering or (iv) through a redemption or share exchange provided in Section
3.3), the Selling Holder shall before such Transfer, deliver to the Company and
to the other Stockholders (the "Other Holders") at least 50 days prior written
notice of such proposed Transfer (the "Sale Notice") and the terms of such
Transfer, including (A) the number of Shares to which the Transfer relates (the
"Offered Shares"), (B) the name and address of the Selling Holder and proposed
Transferee, (C) the proposed amount and type of consideration (including, if the
consideration consists in whole or in part of non-cash consideration, such
information available to the Selling Holder as may be reasonably necessary for
the Other Holders to properly analyze the economic value and investment risk of
such non-cash consideration), (D) the terms and conditions of payment proposed
by the Selling Holder, and (E) an offer to sell all, but not less than all of
the Offered Shares to such Other Holders on the same terms and conditions
proposed by the Selling Holder.
(b) Any of the Other Holders may, within 30 days of the receipt of
the Sale Notice, give written notice to the Selling Holder that such Other
Holder desires to purchase all or any part of the Offered Shares on the same
terms and conditions proposed by the Selling Holder (an "Acceptance"), which
Acceptance shall state the number of Offered Shares such Other Holder desires to
purchase and shall be delivered in person or mailed to the Selling Holder at the
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address set forth in the Sale Notice; provided, that (1) failure by an Other
Holder to deliver an Acceptance during such 30-day period shall be deemed to
constitute the election of such Other Holder not to exercise its right to
purchase any of the Offered Shares, (2) the Selling Holder shall have no
obligation to sell any of the Offered Shares to any Other Holder unless the
aggregate number of Shares in all Acceptances are equal to or greater than the
number of Offered Shares and (3) subject to the next sentence, each Other Holder
shall only have the right to purchase its Pro Rata Amount of the Offered Shares.
The Other Holders shall have a right of oversubscription such that if any Other
Holder fails to accept the offer provided in the Sale Notice as to its full Pro
Rata Amount, the Other Holders, among them, shall have the right to purchase up
to the balance of the Offered Shares not so purchased. Such right of
oversubscription may be exercised by an Other Holder by accepting the offer in
the Sale Notice as to more than its Pro Rata Amount. If, as a result thereof,
such oversubscriptions exceed the total number of Offered Shares, the
oversubscribing Other Holders shall be reduced with respect to their
oversubscriptions so as to sell the Offered Shares as nearly as possible in
accordance with their respective Pro Rata Amount or as they may otherwise agree
among themselves. If the Other Holders have not made timely Acceptances to
purchase all of the Offered Shares, then the Selling Holder must provide written
notice to each Other Holder (the "Final Notice") that the rights to acquire all
of the Offered Shares pursuant to this Section 3.2(b) have not been exercised
and that the Other Holders have 20 days in which to exercise their "tag-along"
rights under subsection (c) below in connection with the transaction described
in the Sale Notice. As promptly as practicable after becoming available, the
Selling Holder shall provide copies of all relevant transaction agreements and
other documents to the Other Holders.
(c) Any of the Other Holders may, within 20 days of the
receipt of the Final Notice, give written notice (each, a "Tag-Along Notice") to
the Selling Holder that such Other Holder wishes to participate in the Transfer
proposed in the Sale Notice upon the terms and conditions set forth in the Sale
Notice, which Tag-Along Notice shall specify the Shares such Other Holder
desires to include in such proposed Transfer; provided, however, that (1) each
Other Holder shall be required, as a condition to being permitted to sell Shares
pursuant to this Section 3.2(c) in connection with a Transfer of Offered Shares,
to sell a number of shares equal to the product of its Pro Rata Amount and the
number of Offered Shares, and (2) to exercise its tag-along rights hereunder,
each Other Holder must agree to make to the Transferee on behalf of itself the
same representations, warranties, covenants, indemnities and agreements as the
Selling Holder agrees to make in connection with the Transfer of the Offered
Shares (except that in the case of representations and warranties pertaining
specifically to, or covenants made specifically by, the Selling Holder, the
Other Holders shall make comparable representations and warranties pertaining
specifically to (and, as applicable, covenants by) themselves), and must agree
to bear its ratable share (which shall be proportionate based on the value of
Shares that are Transferred) of all liabilities to the Transferees arising out
of representations, warranties (other than those representations, warranties and
covenants that pertain specifically to a given Stockholder), covenants,
indemnities or other agreements made in connection with the Transfer.
(d) If one or more Other Holders give the Selling Holder
timely Acceptances for all of the Offered Shares, then sale of the Offered
Shares to the Other Holders shall be made at the offices of the Company no later
than the 40th day following the Sale Notice (subject to extension if necessary
to obtain Xxxx-Xxxxx-Xxxxxx Act clearance) or at such other
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time or place as the parties to the transaction may agree upon. Such sales shall
be effected by the Selling Holder's delivery to each Other Holder, as the case
may be, of a certificate or certificates evidencing the Offered Shares to be
purchased by it duly endorsed for Transfer to the applicable Other Holders,
which Offered Shares shall be delivered free and clear of all liens, charges,
claims and encumbrances of any nature whatsoever (other than restrictions
contained herein and under federal and state securities laws), against payment
to the Selling Holder of the purchase price therefor by the respective Other
Holder. Payment for the Offered Shares shall be made as provided in the Sale
Notice or by wire transfer or certified check, in the sole discretion of the
Other Holder.
(e) If the Selling Holder does not receive Acceptances for all
of the Offered Shares and one or more Other Holders give the Selling Holder a
timely Tag-Along Notice, then the Selling Holder shall use all reasonable
efforts to obtain the agreement of the prospective Transferee(s) to the
participation of the Other Holders in any contemplated Transfer, on the same
terms and conditions as are applicable to the Offered Shares, and if the
prospective Transferee allows participation of any Other Holders, such Other
Holders shall transfer to the Transferee their applicable Offered Shares along
with the Selling Holder. No Selling Holder shall transfer any of its shares to
any prospective Transferee if such prospective Transferee(s) declines to allow
the participation of any of the Other Holders.
(f) If the Other Holders, in the aggregate, have not given the
Selling Holder a Tag-Along Notice or Acceptance for all of the Offered Shares
prior to the expiration of the applicable time periods set forth above, then the
Selling Holder may Transfer such Offered Shares on the terms and conditions set
forth, and to or among any of the Transferees identified (or Affiliates of
Transferees identified), in the Sale Notice at any time within ninety (90) days
after expiration of the 20-day period for giving Tag-Along Notices with respect
to such Transfer. Any such Offered Shares not Transferred by the Selling Holder
during such 90-day period will again be subject to the provisions of this
Section 3.2 upon subsequent Transfer.
(g) Each Stockholder selling Shares will bear (x) its own
costs of any sale of Shares pursuant to this Section 3.2 and (y) its pro-rata
share (based upon the relative amount of Shares sold) of any of the other
reasonable and customary costs of any sale of Shares pursuant to this Section
3.2 to the extent such costs are incurred for the benefit of all Stockholders
selling Shares and are not otherwise paid by the Transferee.
3.3 Redemption and Share Exchange.
(a) FSC may, at its option, but subject to the approval rights
in Section 2.2(a)(viii), redeem, out of funds legally and contractually
available therefor (including out of funds received by FSC in connection with or
from any equity or debt financing by FSC or any direct or indirect parent or
subsidiary of FSC), the Preferred Shares, in whole or part, at a price per share
in cash equal to the Redemption Price. The Company will provide funds to FSC and
cause FSC to redeem all of the outstanding Preferred Shares upon a Sale of the
Company unless such Preferred Shares are sold in such transaction.
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(b) Notwithstanding anything to the contrary contained in this
Section 3.3, in connection with the first Public Offering of the Company, FSC
shall, to the extent it shall have funds legally and contractually available to
do so (but subject to the limitations described below), redeem an amount of
Preferred Shares as set forth in this Section 3.3(b) at the then applicable
Redemption Price. In connection with the preparation for any such Public
Offering of the Company, the FSC Board shall consult, coordinate and cooperate
with the Board and the managing underwriters of such Public Offering of the
Company to determine the maximum amount of proceeds from such Public Offering of
the Company that would be available for the Company to contribute to FSC
following such Public Offering for FSC to use to redeem Preferred Shares as
contemplated by this Section 3.3 without having an adverse effect on such
offering, including the anticipated public offering price or the anticipated
amount of shares that would be sold therein (such maximum amount of proceeds,
the "Maximum Available IPO Proceeds"). If the Maximum Available IPO Proceeds is
expected to exceed the anticipated aggregate Redemption Price for all Preferred
Shares under this Section 3.3 and FSC would obtain funds therefrom that would be
legally and contractually available to effect such redemption, then all, but not
less than all, of the Preferred Shares shall be redeemed by FSC in connection
with such Public Offering. If the Maximum Available IPO Proceeds is not expected
to equal or exceed the anticipated aggregate Redemption Price for all Preferred
Shares under this Section 3.3 or FSC will not have funds legally and
contractually available therefrom to effect such redemption, then less than all
of the Preferred Shares shall be redeemed by FSC in connection with the first
Public Offering of the Company and, prior to the effectiveness of the
registration statement being used under the Securities Act, the FSC Board, in
consultation with the Board and the managing underwriters of such Public
Offering of the Company, shall determine, and notify the holders of Preferred
Shares of, the amount, if any, of Preferred Shares that will be redeemed in
connection with such Public Offering (such amount of Preferred Shares, the
"Lesser IPO Redemption Shares" and, the amount of Preferred Shares equal to the
total number of Preferred Shares outstanding at the time of such determination
minus the Lesser IPO Redemption Shares, the "Excess Shares"), and such Lesser
IPO Redemption Shares shall be redeemed by FSC in connection with such Public
Offering. The notice referred to in the preceding sentence shall also state the
number of Excess Shares. The Excess Shares shall be exchanged for shares of
Common Stock pursuant to Section 3.3(g) below. Any redemption of Preferred
Shares to be effected pursuant to this Section 3.3(b) shall occur concurrently
with the closing of such Public Offering and the receipt of proceeds therefrom
by the Company and FSC.
(c) Notice of any redemption of Preferred Shares pursuant to
this Section 3.3 (the "Redemption Notice") shall be mailed by or on behalf of
FSC by first class mail certified mail, postage prepaid, delivered in person,
delivered by overnight courier or sent by facsimile transmission to all holders
of record of Preferred Shares at their respective addresses or facsimile
numbers, as applicable, as they appear on the stock register or records of FSC,
not less than three business days nor more than 60 days prior to the anticipated
Redemption Date. The Redemption Notice shall specify: (i) the anticipated
Redemption Price, (ii) the anticipated Redemption Date, (iii) the anticipated
number of shares to be redeemed, and (iv) the place at which the Preferred
Shares called for redemption will, upon presentation and surrender of the
certificates evidencing such shares, be redeemed.
13
(d) Each holder of Preferred Shares redeemed pursuant to this
Section 3.3 shall surrender the certificate or certificates representing such
Preferred Shares to FSC, duly endorsed (or otherwise in proper form for
transfer, as determined by FSC), in the manner and at the place designated in
the Redemption Notice. Upon presentation and surrender of the certificate or
certificates evidencing the Preferred Shares called for redemption, FSC or its
representative shall pay the Redemption Price to the holder of record of such
surrendered shares.
(e) Unless FSC defaults in the payment in full of any
applicable Redemption Price to be paid under this Section 3.3, dividends on the
Preferred Shares called for redemption shall cease to accrue and accumulate on
the Redemption Date, and holders of such redeemed shares shall cease to have any
further rights in respect thereof on such Redemption Date, other than the right
to receive the Redemption Price.
(f) In the event that fewer than all the outstanding Preferred
Shares are to be redeemed pursuant to this Section 3.3, the number of Preferred
Shares to be redeemed shall be determined by the FSC Board in the case of a
partial redemption pursuant to Section 3.3(a) or shall be the Lesser IPO
Redemption Shares under Section 3.3(b) and the Preferred Shares so redeemed
shall be selected pro rata (with any fractional shares being rounded to the
nearest whole, with five or more being rounded up) according to the number of
whole shares held by each holder of Preferred Shares.
(g) In connection with the first Public Offering of the
Company, any Excess Shares shall be exchanged for shares of Common Stock in
accordance with the provisions of this Section 3.3(g).
(i) Exchange. Immediately prior to the Public Offering (but in any
event not later than the day prior to the date the Company's
registration statement under the Securities Exchange Act of
1934 becomes effective), without any action by the FSC Board,
any holder of Excess Shares or any other Person, each Excess
Share shall be automatically exchanged for a number of shares
of Common Stock equal to the Excess Preferred Share Exchange
Factor at the time of exchange.
(ii) Fractional Shares. Upon any exchange of Excess Shares for
shares of Common Stock pursuant to Section 3.3(g)(i) above,
fractional shares shall be exchanged into equivalent
fractional shares of shares of Common Stock (or, at the
discretion of the FSC Board, eliminated in return for payment
therefor in cash at the fair market value thereof, as
determined by the price per Common Share in the Company's
first Public Offering).
(iii) Effect of Exchange. Upon any exchange of Preferred Shares, the
holder of any Preferred Shares shall surrender the certificate
evidencing such shares to FSC at its principal offices. From
and after the time of any exchange of Preferred Shares under
this Section 3.3(g), no person shall have any rights in such
Preferred Shares.
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(h) The Company and each Stockholder shall cooperate with FSC
and take such actions as may be necessary to effect any redemption and to effect
and give effect to any exchange of Excess Shares set forth in this Section 3.3.
(i) Prior to any exchange of any Preferred Shares into shares
of Common Stock, the FSC Board and the Board shall take all actions necessary or
desirable in the reasonable opinion of the majority in interest of the holders
of the Preferred Shares, including the adoption of appropriate resolutions, to
exempt, to the extent feasible under applicable law, the determination of the
number of shares of Common Stock to be received upon exchange of a Preferred
Share from the provisions of Section 16(b) of the Securities Exchange Act of
1934.
(j) FSC shall not in any manner subdivide or increase the
number of (by share split, share dividend or other similar manner), or combine
in any manner, the outstanding Preferred Shares unless a proportional adjustment
is made to the Liquidation Preference applicable to each Preferred Share so
outstanding.
3.4 Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Shares in violation of any provision of this Agreement shall be
void, and the Company shall not record such Transfer on its books or treat any
purported transferee of such Shares as the owner of such Shares for any purpose.
ARTICLE IV
TAKE-ALONG RIGHT
4.1 Right of First Offer. If the Initiating Stockholders elect to
cause the Company to consummate a transaction constituting a Sale of the
Company, the Initiating Stockholders shall notify the Company and each of THL,
Evercore and FNF in writing of that election. Within 30 days following receipt
of the notice provided by the Initiating Stockholders, each of THL, Evercore and
FNF (if they are not Initiating Stockholders, the "Offeror") may make an offer
to the Initiating Stockholders in writing to purchase all, but not less than
all, of the outstanding shares of capital stock of the Company. Such offer shall
include (A) the proposed amount and type of consideration (including, if the
consideration consists in whole or in part of non-cash consideration, such
information as may be reasonably necessary for the Company to properly analyze
the economic value and investment risk of such non-cash consideration), and (B)
the terms and conditions of payment proposed by the Offeror. The Initiating
Stockholders shall have 15 days within which to accept an offer presented by the
Offeror, but shall not have any obligation to accept such offer or provide any
appraisal of the Company, provided that the Initiating Stockholders may not
effect a Sale of the Company or enter into definitive sale agreements with
respect to a Sale of the Company on terms less favorable than the offer provided
by the Offeror pursuant to this Section 4.1, and the Initiating Stockholders
have 180 days from the date of the offer made by the Offeror to complete such
Sale of the Company in accordance with Section 4.2.
4.2 Take-Along Right.
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(a) If no offer is made pursuant to Section 4.1 or if the Initiating
Stockholders decide not to accept the offer made by the Offeror pursuant to
Section 4.1, and the Initiating Stockholders elect to consummate, or to cause
the Company to consummate, a transaction constituting a Sale of the Company that
satisfies the requirements of Section 4.1, the Initiating Stockholders shall
notify the Company and the other Stockholders in writing of that election, the
other Stockholders will consent to and raise no objections to the proposed
transaction, and the Stockholders and the Company will take all other actions
reasonably necessary or desirable to cause the consummation of such Sale of the
Company on the terms proposed by the Initiating Stockholders. Without limiting
the foregoing, (i) if the proposed Sale of the Company is structured as a sale
of assets or a merger or consolidation, or otherwise requires Stockholder
approval, the Stockholders and the Company will vote or cause to be voted all
Shares that they hold or with respect to which such Stockholder has the power to
direct the voting and which are entitled to vote on such transaction in favor of
such transaction and will waive any appraisal rights which they may have in
connection therewith and (ii) if the proposed Sale of the Company is structured
as or involves a sale or redemption of Shares, the Stockholders will agree to
sell their pro-rata share of the Shares being sold in such Sale of the Company
on the terms and conditions approved by the Initiating Stockholders, and the
Stockholders will execute any definitive sale agreements, and will make to the
buyer the same representations, warranties, covenants, indemnities and
agreements (other than non-competition agreements) as the Initiating
Stockholders make in connection with such Sale of the Company (except that in
the case of representations and warranties pertaining specifically to, or
covenants made specifically by, any Initiating Stockholder, the other
Stockholders shall make comparable representations and warranties pertaining
specifically to (and, as applicable, covenants by) themselves), and must agree
to bear their ratable share (which shall be proportionate based on the value of
Shares that are being sold in such Sale of the Company) of all liabilities of
the Stockholders arising out of representations, warranties (other than those
representations, warranties, covenants, indemnities and agreements that pertain
specifically to a given Stockholder), covenants, indemnities or other agreements
made in the definitive sale agreements.
(b) The obligations of the Stockholders with respect to the Sale of
the Company are subject to the satisfaction of the following conditions: (i)
upon the consummation of the Sale of the Company, all of the holders of Shares
shall receive the same form and amount of consideration per Share, or if any
holders of a particular class or series of securities are given an option as to
the form and amount of consideration to be received, all holders of such class
or series will be given the same option, and (ii) in no event shall the
aggregate liability of any Stockholder for representations, warranties,
covenants, indemnities or agreements (other than with respect to such
Stockholder's ownership of its Shares, its ability to consummate the transfer
thereof, and investment representations required under applicable securities
laws) with respect to any Sale of the Company exceed the proceeds received by
such Stockholder in such Sale of the Company.
(c) Each Stockholder will bear its or his pro-rata share (based upon
the relative amount of Shares sold) of the reasonable and customary costs of any
sale of Shares pursuant to a Sale of the Company to the extent such costs are
incurred for the benefit of all Stockholders and are not otherwise paid by the
Company or the acquiring party. Costs incurred by or on behalf of a Stockholder
for its or his sole benefit will not be considered costs of the
16
transaction hereunder. In the event that any transaction that the Initiating
Stockholders elect to consummate or cause to be consummated pursuant to this
Article IV is not consummated for any reason, the Company will reimburse the
Initiating Stockholders for all actual and reasonable expenses paid or incurred
by the Initiating Stockholders in connection therewith.
ARTICLE V
PRE-EMPTIVE RIGHTS
5.1 Issuance of New Shares.
(a) Purchase Rights. If at any time after the date of this Agreement
the Company or FSC proposes to issue or sell any Common Stock, Common Stock
Equivalents or securities convertible into equity securities of the Company or
FSC (collectively, "New Shares"), the Company or FSC, as applicable, shall first
offer to sell to each Stockholder a portion of each type of such New Shares
equal to the quotient determined by dividing (x) the number of Common Shares
held or beneficially owned by such Stockholder, by (y) the total number of
Common Shares outstanding immediately prior to such issuance or sale. A
Stockholder shall be entitled to purchase all or any portion of its respective
portion (as determined in the immediately preceding sentence) of such New Shares
at the most favorable price and on the most favorable terms as such New Shares
are to be offered. The holders of Shares shall further have a right of
over-allotment such that to the extent a Stockholder (a "Rejecting Holder") does
not exercise its right to purchase any of the New Shares, or exercises its
rights for less than all of its pro rata share of the New Shares (as determined
above), then each other Stockholder may elect to purchase its pro rata share (as
determined above) of such New Shares which the Rejecting Holder does not elect
to purchase.
(b) Offer Period. In order to exercise its purchase rights
hereunder, each Stockholder must, within 30 days after receipt of written notice
from the Company or FSC, as applicable, describing in reasonable detail the New
Shares being offered, the purchase price thereof, the payment terms, the
percentage of the New Shares initially available to such holder pursuant to
Section 5.1(a) and the over-allotment right available in connection therewith,
deliver a written notice to the Company or FSC, as applicable, describing its
election to exercise its purchase rights hereunder.
(c) Expiration of Offer Period. Upon the expiration of the offering
period described above, the Company or FSC, as applicable, shall be entitled to
sell such New Shares which the Stockholders have not elected to purchase during
the 180 days following such expiration on terms and conditions no more favorable
to the purchasers thereof than those offered to the Stockholders pursuant to
Section 5.1(a). Any New Shares to be sold by the Company or FSC, as applicable,
after such 180-day period must be reoffered to the Stockholders pursuant to the
terms of this Section 5.1.
(d) Exceptions to Purchase Rights. The provisions of this Section
5.1 will not apply to the following issuances of New Shares:
17
(i) Common Stock or Common Stock Equivalents issued or to be
issued to employees, officers or directors of, or
consultants or advisors to the Company, pursuant to the
SIP or otherwise approved pursuant to Section 2.2(a)(ii)
(it being acknowledged that Common Stock or Common Stock
Equivalents will not be issued to Sponsors under this
Section 5.1(d)(1), or to their director designees (other
than pursuant to a grant for a number of shares also
granted to the independent directors of the Company)),
(ii) Equity securities issued in respect of or in exchange
for Shares by way of a stock dividend, stock split or
similar transaction or pursuant to Section 3.3, and
(iii) Equity securities issued in a Public Offering approved
by the Board in accordance with the terms hereof.
ARTICLE VI
BOARD OBSERVERS AND ACCESS
6.1 Board Representation and Access. The Company and FSC agree as
follows:
(a) In the event that a Sponsor loses its right to designate all of
its directors pursuant to Section 2.1(c), such Sponsor (an "Affected Sponsor")
shall have the right to designate an employee of such Sponsor or its Affiliates
as a non-voting observer (a "Non-Voting Observer") to the Board and FSC Board
and who shall be one of such Sponsor's initial designees as a director of the
Company so long as such person is a principal of such Sponsor, and any
replacement shall also be a principal of such Sponsor. The Non-Voting Observer
attending any such meeting shall be entitled to reimbursement from the Company
or FSC, as applicable, for his or her reasonable out-of-pocket expenses
(including travel) incurred in attending such meeting.
(i) The Non-Voting Observer shall be entitled to be present at
all meetings of the Board or the FSC Board and of each committee of the Board or
FSC Board and such observer shall be notified of any meeting of such board or
committee, including such meeting's time and place, in the same manner as board
members and shall have the same access to information (including any copies of
all materials distributed to members of the board or a committee thereof)
concerning the business and operations of the Company and at the same time as
board members and shall be entitled to participate in discussions and consult
with, and make proposals and furnish advice to, the board or committee without
voting; provided, however, that neither the Company nor FSC shall be under any
obligation to take any action with respect to any proposals made or advice
furnished by the Non-Voting Observer, and nothing herein shall prevent the Board
or FSC Board (or any committee thereof) from acting by written instrument to the
extent permitted by applicable law. The Non-Voting Observer shall have a duty of
confidentiality to the Company and FSC comparable to the duty of confidentiality
of a director of the Company or FSC, as applicable.
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(ii) Notwithstanding the foregoing, if an issue is to be
discussed or otherwise arises at any meeting of the Board or FSC Board or any
committee thereof which, in the reasonable judgment of the applicable board or a
majority of the members of such committee, based on advice of legal counsel,
cannot be discussed in the presence of the Non-Voting Observer in order to avoid
a conflict of interest on the part of the Non-Voting Observer or to preserve an
attorney-client or accountant-client or any other available privilege, then such
issue may be discussed without the Non-Voting Observer being present and may be
deleted from any materials being distributed in connection with any meeting at
which such issues are to be discussed, so long as the Non-Voting Observer is
given notice of the occurrence of such meeting and the deletion of such
materials.
(b) The Company will, and will cause its Subsidiaries to, upon
reasonable notice at reasonable times from time to time, provide each Sponsor
(and any other parent company of such Sponsor that is a venture capital
operating company), at the expense of such Sponsor, reasonable opportunities to
routinely consult with and advise the management of the Company and its
Subsidiaries on all matters relating to the operation of the Company and each
such Subsidiary, including, without limitation, with respect to any proposed
merger, sale of all or substantially all of the Company's assets or capital
stock, liquidation or dissolution of or by the Company or other similar
corporation transaction, and shall consider, in good faith, the recommendations
of each Sponsor in connection with the matters on which it is consulted;
provided that the ultimate discretion with respect to all such matters shall be
retained by the Company and the Company shall not be under any obligation to
accept the recommendations of any Sponsor. The Company shall give, and shall
cause its subsidiaries to give, subject to compliance with applicable laws and
confidentiality obligations to third parties, such Sponsor (and any other parent
company of such Sponsor that is a venture capital operating company) and their
authorized representatives reasonable access during normal business hours to all
books of account, facilities and properties of the Company and its subsidiaries
and permit the Sponsor (and any parent company of such Sponsor that is a venture
capital operating company) to make such copies and inspections thereof as any
such Person may reasonably request and discuss the affairs, finances and
accounts with the officers thereof; provided that such Sponsor shall not
exercise such rights more often than quarterly during any calendar year, and
such additional times as may be reasonably required in order to qualify any of
the Shares as a venture capital investment (as defined in the Department of
Labor Regulation Section 2510.3-101). Any such visit will be at the expense of
such Sponsor (or such other parent company of such Sponsor that is a venture
capital operating company).
(c) If (i) reasonably required, in order to qualify any of the
Shares as a venture capital investment (as defined in the Department of Labor
Regulation Section 2510.3-101) or (ii) any Sponsor is unable for any reason
(including pursuant to this Agreement) to appoint a Non-Voting Observer to the
Board or FSC Board (and each of the committees, except the compensation
committee, thereof), then the Company shall promptly provide true and correct
copies of all documents, reports, financial data, and such additional financial
and other information with respect to the Company, and its subsidiaries as such
Sponsor (and any other parent company of such Sponsor that is a venture capital
operating company) may from time to time reasonably request.
19
(d) The Company's and FSC's obligations pursuant to Section 6.1(a)
shall survive until a Public Offering, and the Company's and FSC's obligations
pursuant to Section 6.1(b) and (c) shall survive with respect to each Sponsor
until the later of (i) a Public Offering, or (ii) with respect to THL, until THL
holds less than 20%, and with respect to Evercore, until Evercore holds less
than 40%, of their respective initial equity investments in the Company.
6.2 Information Rights. Prior to the consummation of the first
Public Offering, the Company and FSC shall provide to each Stockholder that
holds more than ten percent (10%) of the outstanding capital stock of the
Company the following information:
(a) Within ninety (90) days after the end of each fiscal year, an
audited consolidated balance sheet of the Company and its Subsidiaries as of the
end of such fiscal year, and an audited consolidated statement of income and
statement of cash flows of the Company and its Subsidiaries for such year, in
each case prepared in accordance with generally accepted accounting principles
and setting forth in comparative form the figures for the previous fiscal year,
all in reasonable detail, and audited by the Company's independent public
accountants.
(b) Within forty five (45) days after the end of each of the first
three fiscal quarters of each fiscal year, unaudited consolidated balance sheets
of the Company and its Subsidiaries as of the end of such fiscal quarter,
unaudited consolidated statements of income, and unaudited consolidated
statements of cash flows for such fiscal quarter and for the current fiscal year
to date. Such financial statements shall be prepared in accordance with
generally accepted accounting principles consistently applied (other than
omission of accompanying notes) and compared with both the actual results from
the corresponding quarter of the previous fiscal year and the budget for the
current fiscal year, all in reasonable detail and signed by the principal
financial or accounting officer of the Company.
(c) Within twenty (20) days after the end of each month of each
fiscal year, the Company's monthly reporting package, including unaudited
consolidated statements of income. Such financial statements shall be prepared
in accordance with generally accepted accounting principles consistently applied
(other than omission of accompanying notes) and compared with both the actual
results from the corresponding month of the previous fiscal year and the budget
(including any reforecasts) for the current fiscal year, all in reasonable
detail and signed by the principal financial or accounting officer of the
Company.
(d) As soon as reasonably practicable and in accordance with past
practice (but in no event later than the first day of such fiscal year), a copy
of an annual budget with line items compared to the previous year's budget and
an annual strategic plan for such fiscal year.
6.3 Confidentiality. Each Stockholder agrees that it will hold, and
will use all commercially reasonable efforts to cause its officers, directors,
members, managers, partners, employees, accountants, counsel, consultants,
advisors, financial sources, financial institutions, and agents (the
"Representatives") to hold, in confidence all confidential information and
documents regarding the Company and its Subsidiaries pursuant to or received by
such Stockholder or its Representatives in connection with this Agreement or any
transaction
20
contemplated hereby (except as required by applicable law, regulation or legal
process, including any rule or regulation of a self-regulatory organization to
which such Stockholder or its Representatives are subject); provided, that each
Stockholder shall be entitled to disclose such confidential information and
documents to its investors who are subject to confidentiality obligations owed
to such Stockholders and are required to hold such confidential information in
confidence as required hereby.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 Amendment and Waiver. Except as otherwise provided herein, any
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company, FSC and all the Stockholders if such
modification, amendment or waiver is approved in writing by the Company, FSC and
by each of THL, Evercore and FNF; provided, however, that the consent of any
such Stockholder shall not be required when such Stockholder, together with its
respective Affiliates, ceases to own at least 8% of the outstanding Common
Shares; provided, further, that no such waiver, modification or amendment which
adversely affects any Stockholder disproportionately to any other Stockholder
shall be permitted without the written consent of such Stockholder. The failure
of any party to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
7.2 Termination of Agreement. This Agreement will terminate in
respect of all Stockholders on the earliest to occur of (a) the execution of a
written consent to terminate the Agreement by the Company, FSC and (i) holders
of a majority of the Shares held by THL and its Permitted Transferees, (ii)
holders of a majority of the Shares held by Evercore and its Permitted
Transferees, and (iii) holders of a majority of the Shares held by FNF and its
Permitted Transferees; (b) the dissolution, liquidation or winding-up of the
Company; (c) the consummation of a Sale of the Company; (d) a Public Offering or
(e) the tenth anniversary of the date hereof; provided, that the Company's and
FSC's obligations pursuant to Sections 6.1(b) and (c) shall survive termination
of this Agreement with respect to each Sponsor until the later of (i) a Public
Offering, or (ii) with respect to THL, until THL holds less than 20%, and with
respect to Evercore, until Evercore holds less than 40%, of their respective
initial equity investments in the Company; and provided further that, Sections
2.4, 6.3 and 8.2(b) and (c) shall survive termination of this Agreement.
7.3 Termination as to a Party. Any Person who ceases to hold any
Shares shall cease to be a Stockholder and shall have no further rights or
obligations under this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Certain Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth or as referenced below:
21
"Acceptance" has the meaning given such term in Section 3.2(b).
"Affected Sponsor" has the meaning given such term in Section
6.1(a).
"Affiliate" of any particular Person means any other Person
Controlling, Controlled by or under common Control with such particular Person
or, in the case of a natural Person, any other member of such Person's Family
Group.
"Agreement" has the meaning set forth in the preamble.
"Audit Committee" has the meaning given such term in Section 2.1(k).
"Board" has the meaning given such term in Section 2.1(a).
"Chairman" has the meaning given such term in Section 2.1(d).
"Closing Date" has the meaning ascribed thereto in the Stock
Purchase Agreement, dated the date hereof, between the Company and the
Purchasers named therein.
"Combined Claim" has the meaning given such term in Section 2.4.
"Common Stock" means, collectively the common stock, par value
$0.0001 per share of the Company and any other class or series of authorized
capital stock of the Company which is not limited to a fixed sum or percentage
of par or stated value in respect to the rights of the holders thereof to
participate in dividends or in the distribution of assets upon any liquidation,
dissolution or winding up of the successor to the Company.
"Common Shares" means the shares of Common Stock of the Company held
by the Stockholders.
"Common Stock Equivalents" means (without duplication with any
Common Stock or other Common Stock Equivalents) rights, warrants, options,
convertible Shares, or exchangeable Shares or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly or indirectly,
Common Stock or securities exercisable for or convertible or exchangeable into
Common Stock, as the case may be, whether at the time of issuance or upon the
passage of time or the occurrence of some future event.
"Company" has the meaning set forth in the preamble.
"Compensation Committee" has the meaning given such term in Section
2.1(j).
"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 by
ownership of voting Shares, by contract or otherwise.
"Cut-Off Date" has the meaning given such term in Section 2.3.
22
"Exempted Arrangements" means the arrangements provided in (i) the
Management Agreement by and between the Company and THL Advisors V, LLC of even
date herewith, (ii) the Management Agreement by and between the Company and
Fidelity National Financial, Inc. of even date herewith, (iii) the Management
Agreement by and between the Company and Evercore Advisors L.L.C. of even date
herewith, and (iv) any contracts or transactions involving FNF or one of its
Subsidiaries (other than the Company or its Subsidiaries) on the one hand, and
the Company or one of its Subsidiaries on the other hand, involving payments of
less than $200,000 annually in the aggregate by either party; provided, that (i)
such transactions do not restrict the ability of the Company and its
Subsidiaries to engage in any activities and (ii) such transactions have been
disclosed in advance to the Board and are on terms no less favorable to the
Company than could be obtained in an arms'-length transaction.
"Exempt Transfer" means, a Transfer of Shares (i) pursuant to
Section 3.2 hereof, (ii) pursuant to Section 4.1 hereof, (iii) upon the death of
the holder pursuant to the applicable laws of descent and distribution, (iv)
solely to or among such Person's Family Group, or (v) incidental to the
exercise, conversion or exchange of such Shares in accordance with their terms,
any combination of shares (including any reverse stock split) or any
recapitalization, reorganization or reclassification of, or any merger or
consolidation involving, the Company. An Exempt Transfer shall also include a
Transfer to a Permitted Transferee.
"Evercore" has the meaning set forth in the preamble.
"Evercore Director" has the meaning given such term in Section
2.1(a).
"Excess Preferred Share Exchange Factor" shall mean, with respect to
each Excess Share, at any time of determination, the quotient obtained by
dividing (i) the Excess Preferred Share Payment Amount by (ii) the price per
share of Common Stock to the public in the applicable Public Offering, in each
case, at such time of determination.
"Excess Preferred Share Payment Amount" shall mean, with respect to
each Excess Share, at any time of determination, an amount equal to the sum of
(i) the then applicable Liquidation Preference of such Excess Share at such time
of determination plus (ii) all accumulated, accrued and unpaid dividends to the
date on which the exchange of Excess Shares pursuant to Section 3.3 is
consummated.
"Excess Shares" has the meaning given such term in Section 3.3(b).
"Family Group" means, with respect to any individual, such
individual's spouse and descendants (whether natural or adopted) and any trust,
partnership, limited liability company or similar vehicle established and
maintained solely for the benefit of (or the sole members or partners of which
are) such individual, such individual's spouse and/or such individual's
descendants.
"Final Notice" has the meaning given such term in Section 3.2(b).
"FNF" has the meaning set forth in the preamble.
23
"FNF Directors" has the meaning given such term in Section 2.1(a).
"FNF Agreements" has the meaning given such term in Section 2.4.
"FNF Claim" has the meaning given such term in Section 2.4.
"FSC" has the meaning set forth in the preamble.
"FSC Board" means the board of directors of FSC.
"Indemnity Agreements" has the meaning given such term in Section 2.4.
"Initiating Stockholders" means, prior to the fourth anniversary of the
date hereof, THL and FNF acting together, or after the fourth anniversary of the
date hereof, the holders of a majority of the Common Shares held by FNF, THL and
Evercore.
"Lesser IPO Redemption Shares" has the meaning given such term in Section
3.3(b).
"Liquidation Preference" shall mean $10.00 (ten dollars).
"Major Holders" has the meaning given such term in Section 2.2(a).
"Management Directors" has the meaning given such term in Section 2.1(a).
"Management Holder" has the meaning given such term in the preamble.
"Material Subsidiary" means a direct or indirect Subsidiary of the Company
which represents 10% or more of the assets or revenues of the Company and its
Subsidiaries, taken together as a whole.
"Maximum Available IPO Proceeds" has the meaning given such term in
Section 3.3(b).
"Merger Agreement" has the meaning given such term in Section 2.4.
"New Shares" has the meaning given such term in Section 5.1(a).
"Non-Voting Observer" has the meaning given such term in Section 6.1(a).
"Offered Shares" has the meaning given such term in Section 3.2(a).
"Other Holder" has the meaning given such term in Section 3.2(a).
"Permitted Transferee" means (a) a transfer of Shares by a Sponsor to a
Transferee that is (i) to and among the Affiliates of the Sponsors, partners of
the Sponsors and the partners (including, without limitation, any limited
partner of such Sponsor), stockholders, employees and Affiliates of such
partners or Affiliates, and (ii) pursuant to a pledge of such
24
Sponsor Shares to an unaffiliated financial institution and (b) a transfer of
Shares by FNF to a Transferee that is an Affiliate of FNF and (c) a transfer of
Shares by a Management Holder to the Company pursuant to (i) any right of the
Company to call the Shares or the Management Holder to put the Shares to the
Company or (ii) any right of the Management Holder to deliver Shares to the
Company in satisfaction of any related exercise price or withholding obligation.
"Person" means an individual, a partnership, a joint venture, a
corporation, an association, a joint stock company, a limited liability company,
a trust, an unincorporated organization or a government or any department or
agency or political subdivision thereof.
"Preferred Shares" means the shares of nonparticipating cumulative
preferred stock, par value $0.0001 per share, of FSC that are held by the
Stockholders.
"Pro Rata Amount" means, with respect to any Stockholder, the quotient
obtained by dividing (i) the sum of the aggregate number of shares of the
particular class or series of capital stock being sold that is held by such
Stockholder by (ii) the aggregate number of issued and outstanding shares of
such class or series of capital stock being sold that is held by all
Stockholders.
"Public Offering" means an offering and sale to the public of any shares
or equity securities of the Company pursuant to a registration statement in the
United States.
"Qualified Public Offering" means a Public Offering whereby the offered
shares trade on a national securities exchange or NASDAQ, and in which (i) the
price per share paid by the public in such offering is at least 200% of the
price per share originally paid by each Stockholder on the date hereof, and (ii)
the gross proceeds would at least equal $125,000,000. Any per share price
contained in this definition shall be subject to adjustment for stock splits,
combinations and similar events.
"quorum" means, with respect to any meeting of directors of the Board, a
group of directors present at any meeting that constitutes a majority of
directors.
"Redemption Date" means, with respect to any redemption of Preferred
Shares provided for hereunder, the date on which such redemption is consummated
by FSC.
"Redemption Notice" has the meaning given such term in Section 3.3(c).
"Redemption Price" means, with respect to any redemption of Preferred
Shares provided for in this Agreement, the price per share equal to the sum of
the Liquidation Preference per share plus an amount equal to all accumulated,
accrued and unpaid dividends to the date fixed for such redemption.
"Representatives" has the meaning given such term in Section 6.3.
"Rejecting Holder" has the meaning given such term in Section 5.1(a).
25
"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 of Persons on an arm's-length basis other than an
Affiliate of any Sponsor, 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
stock of the Company 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 purpose of (i) changing, directly or
indirectly, the form of organization or the organizational structure of the
Company or any of its Subsidiaries or (ii) contributing stock to entities
controlled by the Company.
"Sale Notice" has the meaning given such term in Section 3.2(a).
"SCMS" has the meaning given such term in Section 2.4.
"SCMS Claim" has the meaning given such term in Section 2.4.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933 and the rules and
regulations promulgated thereunder, all as the same have been or may be amended
from time to time.
"Selling Holder" has the meaning given such term in Section 3.2(a).
"Shares" means, collectively, the Common Shares and the Preferred Shares.
"SIP" has the meaning set forth in the preamble.
"Sponsors" has the meaning set forth in the preamble.
"Sponsor Shares" means Shares held by the Sponsors.
"Stockholder(s)" has the meaning set forth in the preamble.
"Subsidiary" means any corporation with respect to which another specified
corporation has the power to vote or direct the voting of sufficient shares to
elect directors having a majority of the voting power of the board of directors
of such corporation.
"Tag-Along Notice" has the meaning given such term in Section 3.2(a).
"THL" has the meaning set forth in the preamble.
"THL Directors" has the meaning given such term in Section 2.1(a).
"Transfer" means (in either the noun or the verb form, including with
respect to the verb form, all conjugations thereof within their correlative
meanings) with respect to any security, the gift, sale, assignment, transfer,
pledge, hypothecation or other disposition (whether
26
for or without consideration, whether directly or indirectly, and whether
voluntary, involuntary or by operation of law) of such security or any interest
therein.
"Transferee" means any Person to whom a Stockholder may Transfer Shares.
8.2 Legends.
(a) Each certificate or instrument evidencing Shares and each certificate
or instrument issued in exchange for or upon the Transfer of any such Shares (if
such Shares remain subject to this Agreement after such Transfer) shall be
stamped or otherwise imprinted with a legend (as appropriately completed under
the circumstances) in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE CONSTITUTE SHARES UNDER A
CERTAIN STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 31, 2006 AMONG THE
ISSUER OF SUCH SHARES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS AND, AS SUCH, ARE SUBJECT TO CERTAIN VOTING PROVISIONS,
PURCHASE RIGHTS AND RESTRICTIONS ON TRANSFER SET FORTH IN THE STOCKHOLDERS
AGREEMENT. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT
CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
(b) Each instrument or certificate evidencing Shares and each instrument
or certificate issued in exchange or upon the Transfer of any Shares shall be
stamped or otherwise imprinted with a legend substantially in the following
form:
"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)."
(c) Whenever in the opinion of the Company and counsel reasonably
satisfactory to the Company (which opinion shall be delivered to the Company in
writing) the restrictions described in any legend set forth above cease to be
applicable to any Shares, the
27
holder thereof shall be entitled to receive from the Company, without expense to
the holder, a new instrument or certificate not bearing a legend stating such
restriction.
8.3 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
8.4 Entire Agreement. Except as otherwise expressly set forth herein, this
document embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
8.5 Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns. Other than as expressly set forth herein
or with the prior written consent of each of THL, Evercore and FNF, neither this
Agreement nor any right, remedy, obligation or liability arising hereunder or by
reason hereof shall be assignable by any party hereto to any Transferee;
provided, however, that the consent of any such Stockholder shall not be
required when such Stockholder, together with its respective Affiliates, ceases
to own at least 8% of the outstanding Common Shares. Any Person acquiring Shares
that is required or permitted by the terms of this Agreement to become a party
hereto shall (unless already bound hereby) execute a joinder or counterpart to
this Agreement agreeing to the obligations of the transferring Stockholder. Upon
such Transfer and such execution and delivery, the Transferee acquiring
Transferred Shares shall be bound by, and entitled to the benefits of, this
Agreement in the same manner as the transferring Stockholder is with respect to
the Shares purchased; provided that no Transferee of FNF or a Sponsor (other
than a Permitted Transferee) shall be entitled to any of the director
designation rights under Section 2.1, the approval rights under Section 2.2(a),
the rights of an Initiating Stockholder under Article IV, or, unless such
Transferee is obligated or reasonably deems it necessary to qualify the Shares
as a venture capital investment (as defined in Department of Labor Regulation
CFR Section 2510.3-101), the rights under Article VI.
8.6 Counterparts. This Agreement may be executed in separate counterparts
(including by means of telecopied signature pages) each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
8.7 Remedies. The Company and the Stockholders shall be entitled to
enforce their rights under this Agreement specifically, to recover damages by
reason of any breach of any provision of this Agreement (including costs of
enforcement) and to exercise all other rights existing in their favor. The
parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that the Company
or any Stockholder may in its or his sole discretion apply to any court of law
or equity of
28
competent jurisdiction for specific performance or injunctive relief (without
posting a bond or other security) in order to enforce or prevent any violation
of the provisions of this Agreement.
8.8 Notices. Any notice provided for in this Agreement shall be in writing
and shall be either sent by facsimile (receipt confirmed), personally delivered,
or mailed first class mail (postage prepaid) or sent by reputable overnight
courier service (charges prepaid) to the Company at the address set forth below
and to any other recipient at the address indicated on the Company's records, or
at such address or to the attention of such other person as the recipient party
has specified by prior written notice to the sending party. Notices will be
deemed to have been given hereunder when sent by facsimile (receipt confirmed),
delivered personally, 5 days after deposit in the U.S. mail and one day after
deposit with a reputable overnight courier service. Notices to the Company will
be sent to:
Fidelity Sedgwick Holdings, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx, Associate General Counsel, Mergers and
Acquisitions and Corporate Finance Group
Facsimile: (000) 000-0000
with copies to:
Leboeuf, Lamb, Xxxxxx and XxxXxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
29
Notices to FSC will be sent to:
Fidelity Sedgwick Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx, Associate General Counsel, Mergers and
Acquisitions and Corporate Finance Group
Facsimile: (000) 000-0000
with copies to:
Leboeuf, Lamb, Xxxxxx and XxxXxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
Notices to FNF will be sent to:
Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx, Associate General Counsel, Mergers and
Acquisitions and Corporate Finance Group
Facsimile: (000) 000-0000
with a copy to:
Leboeuf, Lamb, Xxxxxx and XxxXxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
30
Notices to any other Stockholder will be sent to the address set forth
with such Stockholder's name on Exhibit A attached hereto, with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
and, if to Evercore, with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
8.9 Governing Law. The Delaware General Corporation Law shall govern all
questions arising under this Agreement concerning the relative rights of the
Company and its stockholders. All other questions concerning the construction,
validity and interpretation of this Agreement shall be governed by and construed
in accordance with the domestic laws of the State of Delaware applicable to
contracts made and to be performed in the State of Delaware. The parties hereto
hereby irrevocably and unconditionally submit to the exclusive jurisdiction of
any State or Federal court sitting in New York, NY over any suit, action or
proceeding arising out of or relating to this Agreement. The parties hereby
agree that service of any process, summons, notice or document by U.S.
registered mail addressed to any such party shall be effective service of
process for any action, suit or proceeding brought against a party in any such
court. The parties hereto hereby irrevocably and unconditionally waive any
objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum. The parties hereto
agree that a final judgment in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon any party and may be
enforced in any other courts to whose jurisdiction any party is or may be
subject, by suit upon such judgment.
8.10 Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
[SIGNATURE PAGES FOLLOW]
31
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
FIDELITY SEDGWICK HOLDINGS, INC.
By: ____________________________________
Name:
Title:
FIDELITY SEDGWICK CORPORATION
By: ____________________________________
Name:
Title:
FIDELITY NATIONAL FINANCIAL, INC.
By: ____________________________________
Name:
Title:
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
THL EQUITY FUND V BRIDGE CORP.
By: ____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
THL PARALLEL FUND V BRIDGE CORP.
By: ____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
THL CAYMAN FUND V BRIDGE CORP.
By: ____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
XXXXXX X. XXX INVESTORS LIMITED
PARTNERSHIP
By: THL Investment Management Corp.,
its general partner
By: ____________________________________
Name: Xxxxxx X. Xxx
Title: Chief Executive Officer
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
XXXXXX INVESTMENTS EMPLOYEES'
SECURITIES COMPANY I LLC
By: Xxxxxx Investments Holdings, LLC,
its managing member
By: Xxxxxx Investment, LLC, its managing
member
By: ____________________________________
Name:
Title:
XXXXXX INVESTMENTS EMPLOYEES' SECURITIES
COMPANY II LLC
By: Xxxxxx Investment Holdings, LLC,
its managing member
By: Xxxxxx Investments, LLC, its
managing member
By: ____________________________________
Name:
Title:
XXXXXX INVESTMENT HOLDINGS, LLC
By: Xxxxxx Investments, LLC, its
managing member
By: ____________________________________
Name:
Title:
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
EVERCORE CAPITAL PARTNERS II L.P.
By: Evercore Partners II L.L.C., its
General Partner
By: ____________________________________
Name:
Title:
EVERCORE CO-INVESTMENT PARTNERSHIP
II L.P.
By: Evercore Co-Investment XX XX L.L.C.,
its General Partner
By: Evercore Partners II L.L.C., its
Managing Member
By: ____________________________________
Name:
Title:
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
________________________________________
Xxxxx Xxxxx, individually
EXHIBIT A
Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx and Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
Evercore Partners
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
