DEALER-MANAGER AND SOLICITATION AGENT AGREEMENT

 

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                                                                     Exhibit 1.1

 

                DEALER-MANAGER AND SOLICITATION AGENT AGREEMENT

 

                       FIDELITY NATIONAL TITLE GROUP, INC.

 

                                                               November __, 2005

 

 

LEHMAN BROTHERS INC.

745 Seventh Avenue - Floor 5

New York, New York  10019

 

Dear Ladies and Gentlemen:

 

                1. THE EXCHANGE OFFER AND CONSENT SOLICITATION. Fidelity

National Title Group, Inc., a Delaware corporation (the "COMPANY"), intends to

make an exchange offer (together with any amendments and extensions thereof, the

"EXCHANGE OFFER") for the outstanding 7.30% Notes due 2011 and 5.25% Notes due

2013 (collectively, the "NOTES") of Fidelity National Financial, Inc., a

Delaware corporation ("FNF"), and to engage in a related solicitation (together

with any amendments and extensions thereof, the "SOLICITATION") of consents (the

"CONSENTS") of the holders of the Notes (the "HOLDERS") to certain amendments to

the Indenture dated as of August 20, 2001 between FNF and The Bank of New York,

as trustee (the "TRUSTEE"), relating to the Notes, as amended and supplemented

through the date hereof (the "INDENTURE"), in each case, on the terms and

subject to the conditions set forth in the forms of Prospectus and Consent

Solicitation Statement and related Letter of Transmittal and Consent attached

hereto as Exhibits A and B respectively. Such Prospectus and Consent

Solicitation Statement, (i) including (A) any documents incorporated by

reference therein and (B) any exhibits or annexes thereto and (ii) the Letter of

Transmittal and Consent, as the same may be amended or supplemented from time to

time, are referred to herein as the "OFFER TO EXCHANGE" (or sometimes as the

"PROSPECTUS") and "LETTER OF TRANSMITTAL" respectively. In exchange for tendered

Notes, the Company will issue its newly issued notes (the "NEW NOTES") with the

same principal amounts, interest rates, redemption terms and payment and

maturity dates as the tendered Notes. The New Notes will provide for accrued

interest from the last date for which interest was paid on the Notes. The New

Notes will be issued under a new indenture (the "NEW INDENTURE") between the

Company and the Trustee which will be substantially the same as the Indenture.

The Offer to Exchange, the Letter of Transmittal, all statements and other

documents filed or to be filed (including the Registration Statement, as

hereinafter defined) with any federal, state or local governmental or regulatory

agency or authority and such other documents (including, but not limited to, any

advertisements, press releases or summaries relating to the Exchange Offer

and/or Solicitation and any forms of letters to brokers, dealers, banks, trust

companies and other nominees relating to the Exchange Offer and/or the

Solicitation) as the Company may authorize for use in connection with the

Exchange Offer and/or the Solicitation during the term of this Agreement, as

amended or supplemented from time to time, are collectively referred to as the

"EXCHANGE OFFER AND SOLICITATION MATERIALS".

 

                2. APPOINTMENT AS DEALER-MANAGER. The Company hereby appoints

Lehman Brothers Inc. ("LEHMAN BROTHERS") as sole dealer-manager in connection

with the Exchange Offer and as sole solicitation agent in connection with the

Solicitation (in such capacities, the "DEALER-MANAGER"), and the Company hereby

authorizes Lehman Brothers to act as such in connection with the Exchange Offer

and Solicitation. On the basis of the representations and warranties and

agreements of the Company contained in this Agreement and

 

 

 

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subject to and in accordance with the terms and conditions hereof, Lehman

Brothers agrees in accordance with its customary practice to use its reasonable

best efforts to solicit tenders of Notes and delivery of Consents pursuant to

the Exchange Offer and Solicitation, respectively, and to communicate with

brokers, dealers, banks, trust companies, nominees and other persons with

respect to the Exchange Offer and Solicitation.

 

                3. NO LIABILITY FOR ACTS OF BROKERS, DEALERS, BANKS, TRUST

COMPANIES, NOMINEES AND OTHERS. Lehman Brothers shall not be subject to any

loss, claim, damage, liability or expense owed to the Company or any of the

Company's affiliates or subsidiaries for any act or omission on the part of any

broker or dealer in securities (other than Lehman Brothers), bank, trust

company, nominee or any other person, and Lehman Brothers shall not be liable

for its own acts or omissions in performing its obligations as Dealer-Manager

except for any losses, claims, damages, liabilities and expenses determined in a

final judgment by a court of competent jurisdiction to have resulted directly

from any such acts or omissions undertaken or omitted to be taken by Lehman

Brothers through its bad faith, gross negligence or willful misconduct. In

soliciting or obtaining tenders of Notes and deliveries of Consents, the Company

hereby acknowledges that Lehman Brothers, as Dealer-Manager, is acting as

independent contractor and shall not be deemed to be acting as the agent of the

Company or as the agent of any broker, dealer, bank, trust company, nominee or

other person. In soliciting tenders and delivering consents, no broker, dealer,

bank, trust company, nominee or other person shall be deemed to be acting as the

agent of Lehman Brothers, the Company or any of the Company's affiliates or

subsidiaries.

 

                4. THE EXCHANGE OFFER AND SOLICITATION MATERIALS; COMMENCEMENT;

WITHDRAWAL.

 

                (a) The Company hereby (i) agrees to furnish Lehman Brothers

with as many copies as Lehman Brothers may reasonably request of the final forms

of the Exchange Offer and Solicitation Materials and, upon its request, any

other documents filed or to be filed by the Company with any federal, state or

local governmental or regulatory agency or authority, any stock exchange or any

court, (ii) authorizes Lehman Brothers to use copies of the Exchange Offer and

Solicitation Materials in connection with the Exchange Offer and Solicitation

and (iii) acknowledges that the Exchange Offer and Solicitation Materials have

been, or will be, prepared and approved by the Company and are the Company's

sole responsibility with respect to their accuracy and completeness. Lehman

Brothers hereby agrees that it will not disseminate any written materials in

connection with the Exchange Offer and Solicitation other than the Exchange

Offer and Solicitation Materials, information consistent with the Exchange Offer

and Solicitation Materials or information otherwise authorized by the Company.

 

                (b) The Company hereby represents and warrants that it will use

its reasonable best efforts to commence the Exchange Offer and Solicitation as

soon as practicable by publicly announcing its commencement and by distributing,

mailing, or causing to be mailed on its behalf, copies of the Exchange Offer and

Solicitation Materials (excluding the documents incorporated by reference in the

Exchange Offer and Solicitation Materials) to the Holders for delivery, where

necessary to the beneficial holders of the Notes (the date of such announcement

and of the commencement of such distribution, the "COMMENCEMENT DATE").

 

                (c) The Company hereby represents and agrees that no

solicitation material in addition to the Exchange Offer and Solicitation

Materials, each of which shall be in the form

 

 

 

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which has been approved by Lehman Brothers, will be used in connection with the

Exchange Offer and Solicitation or filed with any federal, state or local

governmental or regulatory agency or authority, including the Securities and

Exchange Commission (the "COMMISSION"), by or on behalf of the Company without

Lehman Brothers' prior approval, which approval will not be unreasonably

withheld or delayed. In the event that (i) the Company uses or permits the use

of any such solicitation material in connection with the Exchange Offer or the

Solicitation or files any such solicitation material with any such federal,

state or local governmental or regulatory agency or authority without Lehman

Brothers' prior approval or (ii) if at any time Lehman Brothers shall determine

that any condition set forth in Section 9 shall not be satisfied, then Lehman

Brothers (A) shall have a reasonable period of time after discovering or being

informed of such event to elect whether to continue to act as Dealer-Manager and

shall be entitled to withdraw as Dealer-Manager in connection with the Exchange

Offer and Solicitation without any liability or penalty to Lehman Brothers or

any other person defined in Section 11 as an "Indemnified Person," (B) shall be

entitled promptly to receive the payment of all expenses payable to it under

Section 6 of this Agreement which have accrued to the date of such withdrawal

and (C) shall continue to be entitled to the indemnification and contribution

provisions contained in Section 11. If Lehman Brothers withdraws as Dealer

Manager as set forth in the prior sentence, any fees that would have otherwise

become due pursuant to Section 5 upon the acceptance by the Company for exchange

of Notes tendered pursuant to the Exchange Offer had Lehman Brothers not

withdrawn shall not be payable to Lehman Brothers even if such acceptance

occurs.

 

                5. COMPENSATION.

 

        The Company hereby agrees to pay Lehman Brothers as compensation for its

services as Dealer-Manager, upon the acceptance by the Company for exchange of

Notes tendered pursuant to the Exchange Offer, provided that at least a majority

of each of the two series of the Notes are tendered and not withdrawn pursuant

to the Exchange Offer, a fee equal to $1 million. If the foregoing condition is

met, then the fee set forth in this Section shall be payable within three

business days of the completion of the Exchange Offer and Solicitation.

 

                6. REIMBURSEMENT OF EXPENSES AND PAYMENT OF OTHER COSTS. The

Company hereby agrees (a) to reimburse Lehman Brothers in connection with its

services as Dealer-Manager for any expenses incurred by Lehman Brothers in

connection with the preparation, printing, filing, mailing and publishing of the

Exchange Offer and Solicitation Materials and for all out-of-pocket expenses

incurred by Lehman Brothers as Dealer-Manager, including, without limitation,

the fees and disbursements of Lehman Brothers' legal counsel, Sullivan &

Cromwell LLP (as to the fees and expenses of such counsel, up to a maximum of

$100,000), (b) to pay all fees and expenses of the Information Agent (as defined

below), in connection with the Exchange Offer and Solicitation, (c) to pay any

fees payable to brokers, dealers, banks, trust companies and nominees as

reimbursement for their customary mailing and handling expenses incurred in

forwarding the Exchange Offer and Solicitation Materials to their customers, if

any, and (d) to pay any advertising and public relations charges pertaining to

the Exchange Offer and Solicitation and the related transactions. The Company

shall promptly reimburse Lehman Brothers for all amounts owing under this

Section after such expenses have been paid or have accrued and an invoice

therefor has been sent by Lehman Brothers to the Company, which may be sent from

time to time as such expenses are paid or accrued, whether or not the Exchange

Offer and Solicitation is consummated and in addition to the amounts owing to

Lehman Brothers under the preceding Section.

 

 

 

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                7. THE INFORMATION AGENT; NOTEHOLDER LISTS.

 

                (a) The Company has arranged for D.F. King & Co., Inc. to serve

as information and exchange agent in connection with the Exchange Offer and

Solicitation (collectively in such capacities, the "INFORMATION AGENT") and to

perform services in connection with the Exchange Offer and Solicitation that are

customary for an information and exchange agent.

 

                (b) The Company will provide, or will cause the Information

Agent, as applicable, to provide, Lehman Brothers with the security listing

position (or other cards or lists) containing the names and addresses of, and

the aggregate principal amount of Notes held by, the Holders as of a recent date

and will use its reasonable best efforts to cause Lehman Brothers to be advised,

from time to time as Lehman Brothers may request, during the period of the

Exchange Offer and Solicitation as to any transfers of record of Notes. In

addition, the Company hereby authorizes Lehman Brothers to communicate with the

Trustee and the Information Agent with respect to matters relating to the

Exchange Offer and Solicitation and the Company will advise, or will cause such

persons to advise, Lehman Brothers daily as to such matters as Lehman Brothers

may reasonably request, including the aggregate principal amount of Notes that

have been tendered and for which Consents have been delivered pursuant to the

Exchange Offer and Solicitation, respectively.

 

                8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In addition to

the other representations and warranties made by the Company contained in this

Agreement, the Company represents and warrants to Lehman Brothers, and agrees

with Lehman Brothers, that:

 

                (a) Each of the Company and FNF is a corporation duly organized,

validly existing and in good standing under the laws of its jurisdiction of

incorporation.

 

                (b) Each of the Company and FNF (to the extent applicable to it)

has all necessary corporate power and authority to execute and deliver and

perform this Agreement, to make and consummate the Exchange Offer and

Solicitation, including, but not limited to, by exchanging the Notes and issuing

the New Notes in consideration thereof, and by effecting (in the case of FNF)

the proposed amendments to the Indenture as set forth in the Offer to Exchange

by executing and delivering a supplemental indenture between FNF and the Trustee

supplementing the Indenture (the "SUPPLEMENTAL INDENTURE") pursuant to the

Exchange Offer and Solicitation Materials, and to consummate the other

transactions contemplated by this Agreement and by the Offer to Exchange and the

other Exchange Offer and Solicitation Materials (collectively, the

"TRANSACTIONS"); and all necessary corporate action has been duly taken by the

Company and FNF to authorize the making, execution, delivery, performance and

consummation, as the case may be, of the Transactions.

 

                (c) This Agreement has been duly authorized, executed and

delivered by the Company.

 

                (d) The registration statement on Form S-4 (File No. 333-_____)

(the "REGISTRATION STATEMENT") with respect to the New Notes (i) has been

prepared by the Company in conformity with the requirements of the Securities

Act of 1933, as amended (the "SECURITIES ACT"), and the rules and regulations

(the "RULES AND REGULATIONS") of the Commission thereunder, (ii) has been filed

with the Commission under the Securities Act, (iii) has become effective under

the Securities Act and is not proposed to be amended and (iv) is not subject to

 

 

 

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any stop order under the Securities Act suspending the effectiveness of such

registration statement or any Rule 462(b) registration statement relating

thereto, and no proceedings for that purpose have been instituted or are pending

or, to the knowledge of the Company, are contemplated by the Commission. If any

post-effective amendment to such registration statement has been filed with the

Commission prior to the execution and delivery of this Agreement, the most

recent such amendment has been declared effective by the Commission. Copies of

such registration statement as amended to date have been delivered by the

Company to Lehman Brothers. The Registration Statement conforms, and the

Prospectus and any further amendments or supplements to the Registration

Statement or the Prospectus will when they become effective or are first used to

effectuate the Transactions, as the case may be, conform as to form in all

material respects to the requirements of the Securities Act and the Rules and

Regulations. The Registration Statement and any amendment thereto does not and

will not, as of the applicable effective date, contain any untrue statement of a

material fact or omit to state any material fact required to be stated therein

or necessary to make the statements therein not misleading, (ii) the Prospectus

and any amendment or supplement thereto will not, as of the first date of its

use to effectuate the Transactions, 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 were made, not misleading and (iii) the Exchange Offer and

Solicitation Materials (including any documents incorporated therein by

reference) do not and will not contain any untrue statement of a material fact

or omit to state any material fact necessary in order to make the statements

therein, in the light of the circumstances under which they were made, not

misleading; provided, however, that no representation is made with respect to

statements contained in any of the foregoing based on information furnished in

writing by or on behalf of Lehman Brothers for use therein (the "SUPPLIED

INFORMATION").

 

                (e) The documents incorporated by reference in the Exchange

Offer and Solicitation Materials, as of each of their respective filing dates,

complied as to form in all material respects with the Securities Exchange Act of

1934, as amended, and the rules and regulations of the Commission thereunder

(collectively the "EXCHANGE ACT"), and did not contain any untrue statement of a

material fact or omit to state any material fact necessary in order to make the

statements therein, in the light of the circumstances under which they were

made, not misleading.

 

                (f) The execution, delivery, performance, making and

consummation, as the case may be, of the Transactions will comply in all

material respects with all applicable requirements of law, including the

Exchange Act and any applicable rules or regulations of any governmental or

regulatory agency or authority, including, without limitation those of the

Commission (but not including state securities or state insurance securities

laws, as to which no representation is made).

 

                (g) The execution, delivery, performance, making and

consummation, as the case may be, of the Transactions will not conflict with or

result in a breach or violation of any of the terms or provisions of, or

constitute a default (or an event which, with or without notice or lapse of

time, or both, as the case may be, would constitute a default) under, (i) the

certificate of incorporation or by-laws of the Company or FNF, (ii) any material

loan or credit agreement, indenture (provided the requisite Consents are

executed with respect to the proposed amendments to the Indenture), mortgage,

note, deed of trust or other material agreement or instrument of the Company or

FNF or any of their respective affiliates or subsidiaries, (iii) any

 

 

 

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judgment, order, decree, law, statute, rule or regulation of any court,

governmental or regulatory agency or authority to which the Company or FNF or

any of their respective affiliates or subsidiaries is a party or by which the

Company or FNF or any of their respective affiliates or subsidiaries or assets

or properties is bound or (iv) result in the creation or imposition of any lien,

charge, claim or encumbrance on any material asset or property of the Company or

FNF or any of their respective affiliates or subsidiaries, which in any case

described above (except with reference to the result of a violation of, or a

default under, the restated certificate of incorporation or bylaws of the

Company or FNF), would be material to the Company or FNF and their respective

subsidiaries taken as a whole.

 

                (h) No material consent, authorization, approval or filing with,

exemption, registration, qualification or other action with any federal, state

or local governmental or regulatory agency or authority is required in

connection with the execution, delivery, performance, making and consummation,

as the case may be, of the Transactions other than those which have been made or

obtained, as applicable, as set forth in the Offer to Exchange.

 

                (i) There are no actions, lawsuits, claims or governmental or

administrative proceedings pending (including any stop order, restraining order

or denial of an application for approval), or to the knowledge of the Company

after due inquiry, threatened against the Company or FNF or any of their

respective affiliates or subsidiaries which would, if adversely determined,

materially affect or impair the execution, delivery, performance, making or

consummation, as the case may be, of the Transactions.

 

                (j) The Company has, or has arranged for the borrowing of,

sufficient funds (and authority to use such funds under applicable law), which,

together with funds presently available or committed to it, will enable the

Company to pay, and the Company hereby agrees that the Company will pay

promptly, in accordance with the terms and subject to the conditions of the

Exchange Offer and Solicitation as set forth in the Exchange Offer and

Solicitation Materials and this Agreement, all fees and expenses related to the

Exchange Offer and Solicitation, including, but not limited to, fees and

expenses payable hereunder.

 

                (k) The New Indenture has been duly authorized, executed and

delivered by the Company and, assuming that the New Indenture is the valid and

legally binding obligation of the Trustee, constitutes a valid and legally

binding obligation of the Company, enforceable against the Company in accordance

with its terms except as that enforceability may be limited by (i) bankruptcy,

insolvency, reorganization, moratorium, fraudulent transfer or other similar

laws of general applicability now or hereafter in effect relating to or

affecting the enforcement of creditors' rights, (ii) general principles of

equity (regardless of whether enforceability is considered in a proceeding in

equity or at law) and (iii) an implied covenant of good faith and fair dealing.

The Notes have been duly and validly authorized by the Company for issuance upon

consummation of the Exchange Offer and, when executed by the Company and

authenticated by the Trustee in accordance with the New Indenture and delivered

upon consummation of the Exchange Offer, will have been validly issued and

delivered, free of any preemptive or similar rights to subscribe to or purchase

the same arising by operation of law or under the charter or by-laws of the

Company or otherwise, and will constitute valid and binding obligations of the

Company entitled to the benefits of the New Indenture and enforceable in

accordance with their terms, except as enforcement thereof may be limited by (i)

bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other

similar laws of general applicability now or hereafter in effect relating to or

affecting the enforcement of creditors'

 

 

 

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rights, (ii) general principles of equity (regardless of whether enforceability

is considered in a proceeding in equity or at law), and (iii) an implied

covenant of good faith and fair dealing, and the New Notes conform, or will

conform, to the description thereof in the Registration Statement and the

Prospectus.

 

                (l) The Indenture has been duly authorized, executed and

delivered by FNF and, assuming that the Indenture is the valid and legally

binding obligation of the Trustee, constitutes a valid and legally binding

obligation of FNF, enforceable against FNF in accordance with its terms except

as that enforceability may be limited by (i) bankruptcy, insolvency,

reorganization, moratorium, fraudulent transfer or other similar laws of general

applicability now or hereafter in effect relating to or affecting the

enforcement of creditors' rights, (ii) general principles of equity (regardless

of whether enforceability is considered in a proceeding in equity or at law) and

(iii) an implied covenant of good faith and fair dealing. The Supplemental

Indenture has been duly authorized and, promptly following the receipt of the

requisite Consents, will be duly executed and delivered by FNF and, assuming

that the Supplemental Indenture will be a valid and legal binding obligation of

the Trustee, will constitute a valid and binding obligation of FNF, enforceable

against FNF in accordance with its terms except as that enforceability may be

limi