EXHIBIT 10.60
AGREEMENT FOR THE SALE AND PURCHASE OF STOCK
THIS AGREEMENT FOR THE SALE AND PURCHASE OF STOCK (this "Agreement") is
made effective as of the close of business on October 10, 2001 by and between
FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation ("Seller"), and
FIDELITY NATIONAL INFORMATION SOLUTIONS, INC., a Delaware corporation ("Buyer").
W I T N E S S E T H :
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WHEREAS, pursuant to that certain Settlement Agreement and Mutual
General Release (the "Settlement Agreement"), Seller, among other things,
purchased an aggregate of 40,000 shares (the "Shares") of common stock of
Fidelity National Tax Service, Inc., representing 20% of the issued and
outstanding shares of stock, from Xxxxxxx X. XxXxxxxx, Xx., individually and as
Trustee of the XxXxxxxx Family Trust, Xxxxxxxxxxx X. XxXxxxxx; Xxxxxxx X.
XxXxxxxx; Xxxx X. XxXxxxxx; Xxxx X. Xxxxxxx; and Xxxx X. Xxxxxx;
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller all of the Shares, to be effective as of the close of business on
October 10, 2001, pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
of the parties herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
hereby agree as follows:
1. SALE AND TRANSFER OF STOCK OF FIDELITY NATIONAL TAX SERVICE, INC.
Subject to the terms set forth in this Agreement, at the Closing (as defined in
Section 3), Seller shall sell, transfer and convey to Buyer, and Buyer shall
purchase from Seller, all of Seller's right, title and interest in and to the
Shares, free and clear of all liens, claims, encumbrances, pledges, options,
security interests and any other adverse interests. At the Closing, Seller shall
deliver to Buyer all certificates evidencing the Shares, properly endorsed for
transfer.
2. PURCHASE CONSIDERATION FOR SHARES. As consideration for the transfer of
the Shares to Buyer by Seller, Buyer covenants and agrees to deliver to Seller
Five Million Four Hundred Thousand Dollars ($5,400,000) at the Closing.
3. CLOSING. The Closing of the purchase and sale of the Shares pursuant to
this Agreement (the "Closing") shall take place at 12:00 p.m. PDT on or around
October 10, 2001, or at such later date as agreed by the parties hereto, by
Seller and Buyer exchanging signature pages in person or by facsimile
transmission and sending any original documents required to be delivered
hereunder personally or by mail.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller makes the
representations and warranties set forth below as of the date of this Agreement
and as of the date of the Closing. Any breach of or inaccuracy in such
representations and warranties shall be subject to the provisions of Section 9
hereof.
4.1 ORGANIZATION AND STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
4.2 AUTHORITY AND BINDING EFFECT. Seller has the full corporate
power and authority to execute and deliver this Agreement and any exhibits
hereto. The performance by Seller of each of its obligations contained herein
has been duly authorized by all necessary corporate action of Seller and this
Agreement has been duly executed and delivered by Seller.
4.3 TITLE TO AND ADEQUACY OF PURCHASED ASSETS. At the Closing,
Seller will convey and transfer to Purchaser good, complete and marketable title
to all of the Purchased Assets, free and clear of any and all restrictions and
conditions on transfer or assignment, and free and clear of any and all liens.
All of the Purchased Assets are in the exclusive possession and control of
Seller and Seller has the unencumbered right to use and sell to Purchaser all of
the Purchased Assets without interference from others. No actions, proceedings
or transactions have been commenced or undertaken by Seller that give or would
give rights to any person, other than Purchaser, in any of the Purchased Assets
or interfere with the consummation of the transactions contemplated by this
Agreement.
4.4 OWNERSHIP OF SHARES. Seller is, and at the Closing will be, the
owner, beneficially and of record, of the Shares. All of the Shares will at the
Closing be transferred to Buyer free and clear of all liens, claims,
encumbrances, security interests, pledges, equities, options, charges,
restrictions and defects in title of any nature whatsoever, other than
restrictions imposed by federal and applicable state securities laws which do
not constitute an impediment to the transfer described in this Agreement.
4.5 SECURITIES LAW COMPLIANCE.
(a) Seller represents and warrants that it is acquiring
Buyer's Shares for its own account, not as a nominee or agent, for investment
and not with a view to or for resale in connection with, any distribution or
public offering thereof within the meaning of the Securities Act of 1933 (the
"1933 Act").
(b) Seller understands that (i) Buyer's Shares have not been
registered under the 1933 Act by reason of a specific exemption therefrom, that
they must be held by Seller indefinitely, and that Seller must therefore bear
the economic risk of such investment indefinitely, unless a subsequent
disposition thereof is registered under the 1933 Act or is exempt from such
registration; (ii) each certificate representing Buyer's Shares will be endorsed
with the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN
ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
EXCEPT AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT OF 1933,
AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER.
and (iii) the Buyer will instruct any transfer agent not to register the
transfer of any of Buyer's Shares unless the conditions specified in the
foregoing legend are satisfied.
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(c) Seller has been furnished with such materials and has
been given access to such information relating to the Buyer as Seller has
requested and Seller has been afforded the opportunity to ask questions
regarding Buyer and Buyer's Shares, all as it has found necessary to make an
informed investment decision.
(d) Seller represents and warrants that it is accredited
investor within the meaning of Regulation D under the 1933 Act.
5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer makes the representations
and warranties set forth below as of the date of this Agreement and as of the
date of Closing. Any breach of or inaccuracy in such representations and
warranties shall be subject to the provisions of Section 6 hereof.
5.1 ORGANIZATION AND STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
5.2 AUTHORITY AND BINDING EFFECT. Buyer has the full corporate power
and authority to execute and deliver this Agreement and any exhibits hereto. The
performance by Buyer of each of its obligations contained herein has been duly
authorized by all necessary corporate action of Seller and this Agreement has
been duly executed and delivered by Seller.
5.3 OWNERSHIP OF BUYER'S SHARES. Buyer is, and at the Closing will
be, the owner, beneficially and of record, of the all of Buyer's Shares. All of
Buyer's Shares will at the Closing be transferred to Seller free and clear of
all liens, claims, encumbrances, security interests, pledges, equities, options,
charges, restrictions and defects in title of any nature whatsoever, other than
restrictions imposed by federal and applicable state securities laws which do
not constitute an impediment to the transfer described in this Agreement.
6. INDEMNITY.
6.1 OBLIGATIONS OF SELLER. Seller hereby agrees that it will
indemnify, hold harmless and defend Buyer, its successors and assigns from and
against any and all demands, claims, actions, suits, and any other legal or
investigative proceedings brought against Buyer, its successors or assigns and
any judgments rendered therein or settlements thereof, and all liabilities,
damages, losses, costs and expenses suffered by Buyer, its successors or
assigns, including, without limitation, reasonable attorneys' fees that arise
from or are in connection with any facts, circumstances or events, the existence
or happening of which constitutes a breach of any of the representations,
warranties or covenants of Seller contained in this Agreement.
6.2 OBLIGATIONS OF BUYER. Buyer hereby agrees that it will
indemnify, hold harmless and defend Seller, its successors and assigns from and
against any and all demands, claims, actions, suits, and any other legal or
investigative proceedings brought against Seller, its successors or assigns and
any judgments rendered therein or settlements thereof, and all liabilities,
damages, losses, costs and expenses suffered by Seller, its successors or
assigns, including, without limitation, reasonable attorneys' fees that arise
from or are in connection with any facts, circumstances or events, the existence
or happening of which constitutes a breach of any of the representations,
warranties or covenants of Buyer contained in this Agreement.
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6.3 THIRD-PARTY CLAIMS. In the event of a written assertion of a
third-party claim or dispute which, if adversely determined would entitle any of
the indemnified parties pursuant to Sections 9.1 or 9.2 ("Indemnified Parties")
to indemnification hereunder, the Indemnified Parties shall promptly notify the
indemnifying party thereof in writing; provided, however, that any delay in
providing or failure to provide such notification shall not affect the right of
the Indemnified Parties to indemnification hereunder except to the extent the
indemnifying party is materially prejudiced by the delay or failure. The
indemnifying party may elect, by written notice to the Indemnified Party, to
assume and direct, at its sole expense, the defense of any such third-party
claim, and may, at its sole expense, retain counsel in connection therewith,
provided that such counsel is reasonably acceptable to the Indemnified Party.
After the assumption of such defense by the indemnifying party with counsel
reasonably acceptable to the Indemnified Party, the indemnifying party shall not
be responsible for the payment of legal fees incurred thereafter by the
Indemnified Parties (who may, however, continue to participate in the defense
thereof with separate counsel). No party hereto may settle or compromise any
such third-party claim or dispute without the prior written consent of the other
parties hereto, which consent shall not be unreasonably withheld.
7. MISCELLANEOUS.
7.1 FURTHER ASSURANCES. Seller and Buyer covenant and agree that
each shall execute and deliver at the Closing such instruments and take such
other actions as the other party may reasonably request in order to carry out
the intent of this Agreement or to better evidence or effectuate the
transactions contemplated hereby.
7.2 NOTICES. All notices, requests, demands or other communications
hereunder shall be in writing and shall be deemed to have been duly given, (i)
on the date of delivery if delivered in person or by facsimile, with
confirmation of transmission; or (ii) on the third business day following the
deposit thereof in the United States mail, provided it is mailed by certified
mail, return-receipt requested and postage prepaid and properly addressed to the
addresses set forth below. Any party hereto may from time to time, by written
notice to the other parties, designate a different address, which shall be
substituted for the one specified below.
If to Buyer:
Fidelity National Information Solutions, Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Xxxx Xxxxxxx, President and Chief Operating
Officer
If to Seller:
Fidelity National Financial, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxx, Executive Vice President
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7.3 ASSIGNMENT. Neither party may assign this Agreement, or assign
its rights or delegate its duties hereunder without the prior written consent of
the other party, and any such attempt without consent shall be void.
7.4 SEVERABILITY. Any provision of this Agreement which is illegal,
invalid or unenforceable shall be ineffective to the extent of such illegality,
invalidity or unenforceability, without affecting in any way the remaining
provisions hereof.
7.5 GOVERNING LAW. This Agreement is deemed to have been made in the
State of California and its interpretation, its construction and the remedies
for its enforcement or breach are to be applied pursuant to, and in accordance
with, the laws of the State of California for contracts made and to be performed
in that state.
7.6 ENTIRE AGREEMENT; AMENDMENT. This Agreement and any exhibits and
documents to be executed and delivered pursuant hereto, constitute all of the
agreements of the parties with respect to, and supersede all prior agreements
and understandings relating to the subject matter of this Agreement or the
transactions contemplated by this Agreement. This Agreement may not be modified
or amended except by a written instrument specifically referring to this
Agreement signed by the parties hereto.
7.7 WAIVER. No waiver by one party of the other party's obligations,
or of any breach or default hereunder by any other party, shall be valid or
effective, unless such waiver is set forth in writing and is signed by the party
giving such waiver; and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature or any other breach
or default by such other party.
7.8 INTERPRETATION; HEADINGS. This Agreement is the result of
arms'-length negotiations between the parties hereto and no provision hereof,
because of any ambiguity found to be contained therein or otherwise, shall be
construed against a party by reason of the fact that such party or its legal
counsel was the draftsman of that provision. The section, subsection and any
paragraph headings contained herein are for the purpose of convenience only and
are not intended to define or limit or affect, and shall not be considered in
connection with, the interpretation of any of the terms or provisions of this
Agreement.
7.9 COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.10 EXPENSES. Each party shall pay all of its respective costs and
expenses incurred or to be incurred by it in negotiating and preparing and in
carrying out and performing the transactions contemplated hereby.
7.11 DISPUTE RESOLUTION PROVISION. Any dispute arising out of or
relating to this Agreement shall be resolved in accordance with the procedures
specified in this Section 7.11, which shall be the sole and exclusive procedures
for the resolution of any such disputes.
(a) The parties will attempt in good faith to resolve any claim or
controversy arising out of or relating to the execution, interpretation and
performance of this Agreement
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(including the validity, scope and enforceability of this mediation and
arbitration provision) promptly by negotiations between executives who have
authority to settle the controversy. Any party may give the other party written
notice of any dispute not resolved in the normal course of business. Within
fifteen (15) days after the delivery of such notice, the receiving party shall
submit to the other a written response. The notice and the response shall
include (a) a statement of the party's position and a summary of the arguments
supporting that position, and (b) the name and title of the executive who will
represent that party and any other person who will accompany the executive.
Within thirty (30) days after delivery of the notifying party's notice, the
executives of both parties shall meet at a mutually acceptable time and place,
and thereafter as often as they deem necessary, to attempt to resolve the
dispute. All reasonable requests for information made by one party to the other
will be honored. All negotiations pursuant to this clause are confidential and
shall be treated as compromise and settlement negotiations for purposes of
applicable rules of evidence.
(b) Any dispute arising out of or relating to this Agreement
or its breach, termination or validity which has not been resolved by the
non-binding procedure specified in subsection (a) above, within ninety (90) days
of the initiation of the date of delivery of notice shall be submitted to the
exclusive jurisdiction of the courts of the State of California located in Santa
Xxxxxxx.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
BUYER: SELLER:
FIDELITY NATIONAL INFORMATION FIDELITY NATIONAL FINANCIAL, INC., a
SOLUTIONS, INC., a Delaware corporation Delaware corporation
By: By:
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Name: Name:
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Title: Title:
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