EXHIBIT 10.2
EXHIBIT B
COMMITMENT AGREEMENT
COMMITMENT AGREEMENT dated as of September 14, 2005 (this "Agreement")
among Certegy, Inc., a Georgia corporation ("C Co") and the persons listed on
SCHEDULE A hereto (each, a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, C Co, C Co Merger Sub, LLC, a Delaware limited liability company
and a direct wholly owned subsidiary of C Co ("Merger Co"), and Fidelity
National Information Services, Inc., a Delaware corporation ("F Co") propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement"; capitalized terms
used but not defined herein shall have the meanings set forth in the Merger
Agreement);
WHEREAS each Stockholder owns the number of shares of F Co Common Stock
set forth opposite its name on SCHEDULE A hereto (such shares of F Co Common
Stock, together with any other shares of capital stock of F Co acquired by such
Stockholder after the date hereof and during the term of this Agreement, being
collectively referred to herein as the "Subject Shares" of such Stockholder);
and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, C Co has requested that each Stockholder enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Each Stockholder. Each
Stockholder hereby, severally and not jointly, represents and warrants to C Co
as of the date hereof in respect of himself, herself or itself as follows:
(a) Organization; Authority; Execution and Delivery; No Conflicts;
Enforceability. The Stockholder is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized. The
Stockholder has all requisite power and authority to execute and deliver this
Agreement and the written consent in the form attached as Exhibit J to the
Merger Agreement (the "Stockholder Consent") and to perform its obligations
hereunder and comply with the terms hereof. The execution and delivery by the
Stockholder of this Agreement and its Stockholder Consent and the performance of
its obligations hereunder and compliance with the terms hereof have been duly
authorized by all necessary action on the part of the Stockholder. The
Stockholder has duly executed and delivered this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms. The execution
and delivery by the Stockholder of this Agreement do not, and the execution and
delivery by the Stockholder of its Stockholder Consent and the performance of
its obligations hereunder and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of a material benefit
under, or result in the creation of any Lien (other than Liens created pursuant
to this Agreement) upon any of the assets of the Stockholder under, any
provision of (i) any organizational documents of the Stockholder, (ii) any
Contract to which the Stockholder is a party or by which assets of the
Stockholder are bound or (iii) subject to the filings and other matters referred
to in the next sentence, any provision of any stature, law, ordinance,
regulation, rule, code, executive order, judgment, injunction, decree or other
order ("Law") applicable to the Stockholder or the assets of the Stockholder,
other than, in the case of clauses (ii) and (iii) above, any such items that,
individually or in the aggregate, have not materially impaired or delayed, and
are not reasonably likely to materially impair or delay, the Stockholder's
ability to perform its obligations hereunder or comply with the terms hereof. No
Consent of, or registration, declaration or filing with, any Governmental
Authority is required to be obtained or made by or with respect to the
Stockholder in connection with the execution, delivery and performance of this
Agreement or the execution and delivery of its Stockholder Consent or the
performance of its obligations hereunder or the compliance with the terms hereof
other than (x) compliance with and filings under the HSR Act, (y) the filing
with the SEC of such reports under the Exchange Act as may be required in
connection with this Agreement and (z) such other Consents, registrations,
declarations or filings that are contemplated by the Merger Agreement or the
failure of which to obtain or make are not, individually or in the aggregate,
reasonably likely to materially impair or delay the Stockholder's ability to
perform its obligations hereunder or comply with the terms hereof.
(b) The Subject Shares. The Stockholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares set forth
opposite its name on SCHEDULE A attached hereto, free and clear of any Liens
(other than Liens created pursuant to the terms of this Agreement or arising
under federal or state securities Laws). The Stockholder does not own, of record
or beneficially, any shares of capital stock of F Co other than the Subject
Shares set forth opposite its name on SCHEDULE A attached hereto. The
Stockholder has the sole right to vote such Subject Shares, none of such Subject
Shares is subject to any voting trust or other agreement, arrangement or
restriction with respect to the voting or the Transfer (as defined below) of
such Subject Shares, except as contemplated by this Agreement, and except as set
forth in the Stockholders Agreement, dated as of March 9, 2005, among F Co. and
the Stockholders (the "F Co Stockholders Agreement"), and the Stockholder hereby
(i) waives any rights it may have under the F Co Stockholders Agreement that
would in any way limit the ability of the other Stockholders to perform their
respective obligations under this Agreement, and (ii) agrees that it will take
such action as is necessary to cause the F Co Stockholders Agreement to be
terminated immediately prior to consummation of the Merger.
(c) Investor Representations. The Stockholder acknowledges that the
C Co Common Stock to be issued pursuant to the Merger Agreement initially will
not be registered under the Securities Act in reliance on the exemptions from
the registration requirements of Section 5 of the Securities Act set forth in
Section 4(2) thereof and Regulation D promulgated thereunder. In connection
therewith: (i) the Stockholder hereby represents and warrants to C Co that (A)
it is an "accredited investor" as such term is defined under the Securities Act,
or, alternatively, has such knowledge and experience in financial and business
matters to be capable of evaluating the merits and risks of an investment in C
Co and the C Co Common Stock, and (B) the shares of C Co Common Stock to be
issued to such Stockholder pursuant to the Merger Agreement are being purchased
for investment for the account of such Stockholder and without the intent of
participating directly or indirectly in a distribution of such shares in
violation of the Securities Act or other applicable securities laws; (ii) in
addition to any legend imposed by applicable state securities laws, the
certificates representing the shares of C Co Common Stock
2
to be issued pursuant to the Merger Agreement will bear the restrictive legends
set forth in the Merger Agreement and the Shareholders Agreement, and stop
transfer orders shall be placed against the transfer thereof with C Co's
transfer agent; and (iii) the shares of C Co Common Stock to be issued pursuant
to the Merger will be subject to transfer restrictions imposed by federal and
state securities laws, and as set forth in the Shareholders Agreement or the
Lock-Up Agreement, as applicable.
SECTION 2. Additional Representations and Warranties of F Co Parent. In
addition to the representations and warranties made under Section 2 hereof,
Fidelity National Financial, Inc., a Delaware corporation ("F Co Parent"),
hereby represents and warrants to C Co as of the date hereof as follows:
(a) Information Supplied. None of the information supplied by the F
Co Parent for inclusion or incorporation by reference in the Proxy Statement or
the Other Filings will, in the case of the Proxy Statement, at the date it is
first mailed to C Co's shareholders or at the time of the C Co Shareholders'
Meeting or at the time of any amendment or supplement thereof, or, in the case
of any Other Filing, at the date it is first mailed to C Co's shareholders or,
at the date it is first filed with the SEC, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. No representation is
made by F Co Parent with respect to statements made or incorporated by reference
therein based on information supplied by C Co in connection with the preparation
of the Proxy Statement or the Other Filings for inclusion or incorporation by
reference therein. All Other Filings that are filed by F Co Parent will comply
as to form in all material respects with the requirements of the Exchange Act
and the rules and regulations promulgated thereunder.
(b) Brokers. No broker, finder or investment banker other than Bear,
Xxxxxxx & Co, Inc. and Xxxxxxxx Inc. is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by the
Merger Agreement based upon arrangements made by or on behalf of F Co Parent.
SECTION 3. Representations and Warranties of C Co. C Co hereby represents
and warrants to each Stockholder and F Co as follows: C Co is duly organized,
validly existing and in good standing under the laws of the State of Georgia. C
Co has all requisite corporate power and authority to execute and deliver this
Agreement. The execution and delivery by C Co of this Agreement has been duly
authorized by all necessary action on the part of C Co. C Co has duly executed
and delivered this Agreement, and this Agreement constitutes the legal, valid
and binding obligation of C Co, enforceable against C Co in accordance with its
terms. The execution and delivery by C Co of this Agreement do not and
compliance with the terms hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or result in the creation of any Lien upon any of the properties or
assets of C Co under, any provision of (i) any organizational documents of C Co,
(ii) any Contract to which C Co is a party or by which any assets of C Co are
bound or (iii) subject to the filings and other matters referred to in the next
sentence, any provision of any Law applicable to C Co or the assets of C Co,
other than, in the case of clauses (ii) and (iii) above, any such items that,
individually or in the aggregate, have not, and are not reasonably likely to,
materially impair or delay C Co's ability to consummate the transactions
contemplated by the Merger Agreement.
3
No Consent of, or registration, declaration or filing with, any Governmental
Authority is required to be obtained or made by or with respect to C Co in
connection with the execution, delivery and performance of this Agreement or the
performance of its obligations hereunder or the compliance with the terms hereof
other than (x) compliance with and filings under the HSR Act, (y) the filing
with the SEC of such reports under the Exchange Act as may be required in
connection with this Agreement and (z) such other Consents, registrations,
declarations or filings that are contemplated by or disclosed pursuant to the
Merger Agreement or the failure of which to obtain or make are not, individually
or in the aggregate, reasonably likely to materially impair or delay C Co's
ability to perform its obligations hereunder or comply with the terms hereof.
SECTION 4. Covenants of Each Stockholder. Each Stockholder, severally and
not jointly, covenants and agrees as follows:
(a) Immediately following the execution and delivery of the Merger
Agreement, the Stockholder shall execute and deliver the Stockholder Consent to
the Company. The Stockholder will not thereafter revoke or modify, or encourage
other Stockholders to revoke or modify, the Stockholder Consent, and the
Stockholder will not thereafter execute another written consent or vote (or
cause to be voted) the Subject Shares of the Stockholder for any proposal that
will approve any action in conflict with the Stockholder Consent or that would
otherwise be reasonably likely to impede, frustrate, prevent or nullify any
provision of the Merger Agreement, the Merger or the consummation of any of the
transactions contemplated hereby or thereby.
(b) The Stockholder shall not Transfer, or consent to or permit any
Transfer of, any Subject Shares or any interest therein, or enter into any
Contract, option or other arrangement with respect to the Transfer (including
any profit sharing or other derivative arrangement) of any Subject Shares or any
interest therein, to any person other than pursuant to the Merger Agreement,
other than pursuant to this Agreement or another Ancillary Agreement, and shall
not commit or agree to take any of the foregoing actions. Transfer" means,
directly or indirectly, to sell, transfer, assign, pledge, encumber, hypothecate
or similarly dispose of (by operation of law or otherwise), either voluntarily
or involuntarily, or to enter into any contract, option or other arrangement
with respect to the sale, transfer, assignment, pledge, encumbrance,
hypothecation or similar disposition of (by operation of law or otherwise), any
Subject Shares; provided, however, that a merger, consolidation or similar
business combination transaction in which F Co Parent is a constituent
corporation (or otherwise a party including, for the avoidance of doubt, a
transaction pursuant to which a Person acquires all or a portion of F Co
Parent's outstanding capital stock, whether by tender or exchange offer, by
share exchange, or otherwise) shall not be deemed to be the Transfer of any
Subject Shares beneficially owned by F Co Parent or any of its Subsidiaries,
provided that the primary purpose of any such transaction is not to avoid the
provisions of this Agreement and that the successor or surviving person to such
a merger, consolidation or similar business combination transaction, if not F Co
Parent, expressly assumes all obligations of F Co Parent under this Agreement.
For purposes of this Agreement, the term Transfer shall include the sale of an
Affiliate of F Co Parent or F Co Parent's interest in an Affiliate that
beneficially owns Subject Shares unless such Transfer is in connection with a
merger, amalgamation, plan of arrangement or consolidation or similar business
combination transaction referred to in the first proviso of the previous
sentence.
4
(c) At or prior to the Closing, the Stockholder shall execute and
deliver each Ancillary Agreement to which it has been designated to become a
party thereto pursuant to the Merger Agreement.
(d) Each Stockholder hereby agrees that effective immediately prior
to the Effective Time, each of (i) the Stockholders Agreement, dated as of March
9, 2005, by and among the F Co and the Stockholders, and (ii) the Registration
Rights Agreement, dated as of March 9, 2005, by and among F Co and the
Stockholders shall be automatically terminated without any further action on the
part of any party hereto, and thereafter such Stockholders Agreement and
Registration Rights Agreement shall be of no further force or effect. TPG GenPar
IV, L.P. agrees that effective immediately prior to the Effective Time, that the
Management Agreement, dated as of March 9, 2005, by and between F Co and TPG
GenPar IV, L.P. shall be automatically terminated without any further action on
the part of any party hereto, and thereafter such Management Agreement shall be
of no further force or effect. THL Managers V, LLC agrees that effective
immediately prior to the Effective Time, that the Management Agreement, dated as
of March 9, 2005, by and between F Co and THL Managers V, LLC shall be
automatically terminated without any further action on the part of any party
hereto, and thereafter such Management Agreement shall be of no further force or
effect. Evercore Advisors L.L.C. agrees that effective immediately prior to the
Effective Time, that the Management Agreement, dated as of March 9, 2005, by and
between F Co and Evercore Advisors L.L.C. shall be automatically terminated
without any further action on the part of any party hereto, and thereafter such
Management Agreement shall be of no further force or effect.
(e) Each Stockholder (other than F Co Parent) hereby agrees that,
effective as of the Effective Time and thereafter, such Stockholder shall have
no rights to approve or veto any changes or amendments to the Intercompany
Agreements.
SECTION 5. Additional Covenants of F Co Parent. F Co Parent covenants and
agrees as follows:
(a) As promptly as practicable following the date of this Agreement
F Co Parent shall, or shall cause its affiliates to, prepare and file with the
SEC all Other Filings that are required to be filed by it in connection with the
transactions contemplated by the Merger Agreement. F Co Parent shall timely
furnish all information concerning itself and its affiliates that is required to
be included in the Proxy Statement or, to the extent applicable, the Other
Filings, or that is customarily included in proxy statements or other filings
prepared in connection with transactions of the type contemplated by the Merger
Agreement. F Co Parent shall use its reasonable best efforts to respond as
promptly as practicable to any comments of the SEC with respect to the Other
Filings. F Co Parent shall promptly notify C Co upon the receipt of any comments
from the SEC or its staff or any request from the SEC or its staff for
amendments or supplements to the Other Filings, and shall provide C Co with
copies of all correspondence between it and its Representatives, on the one
hand, and the SEC and its staff, on the other hand relating to the Other
Filings. If at any time prior to the C Co Shareholders' Meeting, any information
relating to F Co Parent or any of its affiliates, officers or directors, should
be discovered by F Co Parent which should be set forth in an amendment or
supplement to the Proxy Statement or the Other Filings, so that the Proxy
Statement or the Other Filings shall not contain any untrue statement of a
material fact or omit to state any material fact required to
5
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not misleading, it shall
promptly notify C Co so that an appropriate amendment or supplement describing
such information shall be filed with the SEC and, to the extent required by
applicable law, disseminated to the shareholders of C Co. Notwithstanding
anything to the contrary stated above, prior to filing the Other Filings (or any
amendment or supplement thereto) or responding to any comments of the SEC with
respect thereto, F Co Parent shall provide C Co an opportunity to review and
comment on such document or response.
(b) F Co Parent shall take such action as is necessary by it to
amend the Intercompany Agreements in the manner contemplated by Section 6.16 of
the Merger Agreement on or prior to the Effective Time.
(c) F Co Parent shall not issue any press release or make any other
public statement with respect to the Merger Agreement, this Agreement, any other
Ancillary Agreement, the Merger or any other transaction contemplated hereby or
thereby without the prior consent of C Co, except as may be required by
applicable law, requirements of the NYSE or court process after using its
reasonable best efforts to consult with C Co and providing it with a reasonable
opportunity for review and comment on such press release or other public
statement to the extent practicable.
(d) F Co Parent shall give prompt notice to C Co of (i) the
occurrence, or non-occurrence, of any event the occurrence, or non-occurrence,
of which could reasonably be expected to cause a breach of any of the
representations and warranties set forth in Sections 2 or 3 hereof, (ii) any
failure of F Co Parent to comply with or satisfy any covenant or agreement to be
complied with or satisfied by it hereunder. In addition, F Co Parent shall give
prompt written notice to C Co of any notice or other communication (x) from any
person and the response thereto of F Co Parent or its Representatives alleging
that the consent of such person is or may be required in connection with the
Merger Agreement or the Merger, and (y) from any Governmental Authority and the
response thereto of F Co Parent or its Representatives in connection with the
Merger Agreement or the Merger.
(e) Except as contemplated by any provision of the Merger Agreement,
as required by law, or as set forth in Section 5.02 of the F Co Disclosure
Schedule, F Co Parent will not, between the date of this Agreement and the
Effective Time, without the prior written consent of C Co (which consent shall
not be unreasonably withheld or delayed) take any action that, to the knowledge
of F Co Parent, would reasonably be likely to prevent or materially delay
satisfaction of the conditions contained in Section 7.01 or 7.02 of the Merger
Agreement or the consummation of the Merger.
(f) F Co Parent agrees to use its reasonable best efforts to (i)
take, or cause to be taken, all appropriate action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable law or
otherwise required of it in order to consummate the Merger, (ii) obtain from
Governmental Authorities any consents, licenses, permits, waivers, approvals,
authorizations or orders required to be obtained by it in connection with the
authorization, execution and delivery of this Agreement, or in connection with
the Merger and the transactions contemplated by the Merger Agreement, (iii)
execute and deliver, or cause to be executed and
6
delivered, such additional or further consents, documents and other instruments
as C Co may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement. In addition, F Co Parent agrees
that it will cooperate fully (including, without limitation, by providing all
information reasonably requested of it) with the other parties in promptly
seeking to obtain all authorizations, consents, orders and approvals required to
be obtained by C Co and F Co in order to effect the Merger, including without
limitation those required under the HSR Act or any other applicable antitrust,
competition or fair trade laws with respect to the Merger.
SECTION 6. Indemnification.
(a) Each Stockholder and F Co shall execute and deliver an amendment
to that certain Amended & Restated Stock Purchase Agreement, dated as of March
8, 2005, among F Co and the Stockholders in the form of EXHIBIT A attached
hereto, on or prior to the Effective Time.
(b) F Co Parent shall, without limitation as to time, indemnify and
hold harmless, to the fullest extent permitted by law, C Co, F Co, their
respective officers, directors, agents, and employees (each, an "Indemnified
Party"), to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, actions or proceedings (whether commenced or
threatened), reasonable costs (including, without limitation, reasonable costs
of preparation and reasonable attorneys' fees) and reasonable expenses
(including reasonable expenses of investigation) (collectively, "Losses"), as
incurred, arising or resulting from, whether such Losses arise or accrue prior
to, on or following the Effective Time, any untrue or alleged untrue statement
of a material fact contained in any Proxy Statement, whether preliminary or
definitive, or in any amendment or supplements thereto, or any Other Filing, or
arising out of or based upon any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue or alleged
untrue statement is contained in, or such omission or alleged omission is
required to be contained in, any information that F Co Parent furnished in
writing to C Co expressly for use in any such Proxy Statement or which C Co
incorporated by reference from F Co Parent's SEC Reports. Each indemnity and
reimbursement of costs and expenses shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party.
(c) C Co shall, without limitation as to time, indemnify and hold
harmless, to the fullest extent permitted by law, F Co Parent and its respective
officers, directors, agents, and employees (each, an "F Co Parent Indemnified
Party"), to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, actions or proceedings (whether commenced or
threatened), reasonable costs (including, without limitation, reasonable costs
of preparation and reasonable attorneys' fees) and reasonable expenses
(including reasonable expenses of investigation) (collectively, "F Co Parent
Losses"), as incurred, arising or resulting from, whether such F Co Parent
Losses arise or accrue prior to, on or following the Effective Time, any untrue
or alleged untrue statement of a material fact contained in any Proxy Statement,
whether preliminary or definitive, or in any amendment or supplements thereto,
or any Other Filing, or arising out of or based upon any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, to
7
the extent, but only to the extent, that such untrue or alleged untrue statement
is contained in, or such omission or alleged omission is required to be
contained in, any information that C Co furnished for use in any such Proxy
Statement. Each indemnity and reimbursement of costs and expenses shall remain
in full force and effect regardless of any investigation made by or on behalf of
such F Co Parent Indemnified Party.
SECTION 7. Termination. This Agreement shall terminate upon the earliest
of (i) the Effective Time and (ii) the termination of the Merger Agreement in
accordance with its terms, other than with respect to the liability of any party
for breach hereof prior to such termination.
SECTION 8. Additional Matters.
(a) Each Stockholder shall, from time to time, execute and deliver,
or cause to be executed and delivered, such additional or further consents,
documents and other instruments as C Co may reasonably request for the purpose
of effectively carrying out the transactions contemplated by this Agreement and
the Merger Agreement.
(b) Each Stockholder signs solely in its capacity as the record
holder and beneficial owner of such Stockholder's Subject Shares and nothing
herein shall limit or affect any actions taken by a partner or an officer,
employee or agent of a Stockholder, in his or her capacity as an officer or
director of F Co in exercising his or her rights under the Merger Agreement to
the extent that such actions are expressly and specifically permitted under the
Merger Agreement.
SECTION 9. General Provisions.
(a) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to C Co in accordance with
Section 9.02 of the Merger Agreement and to the Stockholders at their respective
addresses set forth on SCHEDULE A hereto (or at such other address for a party
as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to a
Section or Schedule, such reference shall be to a Section of, or Schedule to,
this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation". The words "hereby", "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. The words "date hereof" shall refer to the date of this
Agreement. The term "or" is not exclusive. The word "extent" in the phrase "to
the extent" shall mean the degree to which a subject or other thing extends, and
such phrase shall not mean simply "if". The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms. Any agreement or instrument defined or referred to herein or in any
agreement or instrument that is
8
referred to herein means such agreement or instrument as from time to time
amended, modified or supplemented unless otherwise specified. References to a
person are also to its permitted successors and assigns.
(d) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule or Law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement. This
Agreement shall become effective against any Stockholder when one or more
counterparts have been executed by such Stockholder and delivered to C Co. In
respect of each Stockholder, this Agreement shall become effective against C Co
when one or more counterparts have been signed by C Co and delivered to each
Stockholder. Each party need not sign the same counterpart.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(i) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof, except to the extent the Laws of Delaware are mandatorily
applicable to the Merger.
(h) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of Law or otherwise, by C Co without the prior written
consent of each Stockholder or by any Stockholder without the prior written
consent of C Co, and any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
(i) Enforcement. All Actions arising out of or relating to this
Agreement shall be heard and determined exclusively in any federal or state
court located in Jacksonville, Florida. The parties hereby (i) submit to the
exclusive jurisdiction of any state or federal court located in Jacksonville,
Florida for the purpose of any Action arising out of or relating to this
Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not
to assert by way of motion, defense, or otherwise, in any such Action, any claim
that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the
Action is brought in an inconvenient forum, that the venue
9
of the Action is improper, or that this Agreement or the Merger may not be
enforced in or by any of the above-named courts.
(j) Specific Performance. Each party hereto acknowledges that it
will be impossible to measure in money the damages to the other parties if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other parties will not have an adequate remedy at law or in
damages. Accordingly, each party hereto agrees that injunctive relief or any
other equitable remedy, in addition to remedies at law or in damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law or in
damages. Each party hereto agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
10
IN WITNESS WHEREOF, C Co has caused this Agreement to be signed by its
officer thereunto duly authorized and each Stockholder has signed this
Agreement, all as of the date first written above.
CERTEGY INC.
By: /s/ Xxx X. Xxxxxxx
Name:Xxx X. Xxxxxxx
Title:Chairman and Chief Executive Officer
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxx, XX
Name: Xxxxxxx X. Xxxxx, XX
Title:Chairman and Chief Executive Officer
[Signature pages of the Other Stockholders follow]
SCHEDULE A
Name and Address Number of Subject Shares
of Stockholder Owned of Record or Beneficially
-------------------------------------------------------- -------------------------------
THL FNIS Holdings, LLC(1) 21,776,447
Xxxxxx H, Xxx Equity (Cayman) Fund V, L.P.(1) 238,236
Xxxxxx Investment Holdings, LLC(1) 135,499
Xxxxxx Investments Employees' Securities Company I LLC(1) 116,437
Xxxxxx Investments Employees' Securities Company II LLC(1) 103,962
Xxxxxx X. Xxx Investors Limited Partnership(1) 129,419
TPG FNIS Holdings, LLC(2) 20,726,179
TPG Parallel III, L.P.(2) 892,523
TPG Investors III, L.P.(2) 450,148
FOF Partners III, L.P.(2) 10,828
FOF Partners III-B, L.P.(2) 240,671
TPG Dutch Parallel III, C.V.(2) 179,651
Evercore METC Capital Partners II, L.P.(3) 3,000,000
Banc of America Capital Investors, L.P.(4) 2,000,000
Fidelity National Financial, Inc.(5) 150,000,000
-----------
Total 200,000,000
===========
Addresses:
(1) c/o Xxxxxx X. Xxx Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx and Xxxx Xxxxx
(2) c/o Texas Pacific Group
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxx
(3) c/o Evercore Partners
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
(4) Banc of America Capital Investors, L.P.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
(5) Fidelity National Financial, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
EXHIBIT A
FORM OF AMENDMENT NO. 1
TO
AMENDED & RESTATED STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED & RESTATED STOCK PURCHASE AGREEMENT (this
"Amendment"), is made and entered into as of this _____ day of ______________,
by and among Fidelity National Information Services, Inc., a Delaware
corporation ("Company"), Fidelity National Financial, Inc., a Delaware
corporation ("Parent"), and each of the Persons listed as "Purchasers" on the
signature pages hereto (collectively, the "Purchasers").
WITNESSETH:
WHEREAS, the Company, Parent and the Purchasers are parties to that
certain Amended & Restated Stock Purchase Agreement, dated March 8, 2005 (the
"Purchase Agreement"), with respect to the acquisition by the Purchasers of
shares of common stock, par value $0.0001 per share, of the Company;
WHEREAS, the Company has entered into an Agreement and Plan of Merger (the
"Merger Agreement"), dated September 14, 2005, among the Company, Certegy Inc.,
a Georgia corporation ("C Co"), and C Co Merger Sub, LLC, a Delaware limited
liability company and a direct wholly-owned subsidiary of C Co ("Merger Co"),
which provides for, among other things, the merger of the Company with and into
Merger Co (the "Merger"), and the conversion of shares of the Company's common
stock outstanding immediately prior to the Merger into the right to receive
shares of common stock of C Co; and
WHEREAS, the parties hereto desire to amend the Purchase Agreement in
order to provide for the continuation of certain provisions of the Purchase
Agreement following the Merger, and to make certain other changes;
NOW, THEREFORE, in consideration of the foregoing recitals and the
representations, warranties, covenants, and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. AMENDMENTS AND ACKNOWLEDGMENTS.
(a) The first sentence of Section 8.1(a) is hereby amended by substitution
of the following phrase "the date that is 45 days after receipt by the
Purchasers of the consolidated audited financial statements of the Company and
its Subsidiaries for the fiscal year ending December 31, 2005" with the
following phrase "the date that is 45 days after receipt by C Co of the
consolidated audited financial statements of C Co and its Subsidiaries for the
fiscal year ending December 31, 2005."
(b) Parent hereby acknowledges and agrees that its indemnification
obligations under Section 8.2(a) in favor of the Purchasers, the Company and
their Affiliates, shall survive the Merger and continue in favor of the
Purchasers, Merger Co and their Affiliates upon and following the effective time
of the Merger. In furtherance of, and without limitation to, the foregoing, the
parties hereby agree that for purposes of Section 8.2(a), the term "Shares"
shall be deemed to include the shares of C Co common stock to be issued to the
Company's stockholders in connection with the Merger.
(c) The parties hereby acknowledge and agree that Merger Co shall be
deemed to be a "successor" or "permitted assign" for purposes of Section 10.3 of
the Purchase Agreement, such that the Purchase Agreement shall be binding upon
and inure to the benefit of Merger Co upon and following the effective time of
the Merger.
2. DEFINED TERMS. All capitalized terms used in this Amendment and not defined
herein shall have the meaning given such terms in the Purchase Agreement.
3. CONFIRMATION OF AGREEMENT. As expressly modified pursuant to this Amendment,
the Agreement remains in full force and effect. This Amendment shall be governed
by all of the provisions in Article X of the Agreement.
4. COUNTERPARTS. This Amendment may be executed in one or more counterparts,
each of which shall be deemed to be an original, and all of which together shall
constitute one and the same agreement.
[signatures on following pages]
