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CROSS-INDEMNITY AGREEMENT

Indemnification Agreement

CROSS-INDEMNITY AGREEMENT | Document Parties: Fidelity National Information Services, Inc | Fidelity National Title Group, Inc | FIS and Fidelity National Financial, Inc You are currently viewing:
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Fidelity National Information Services, Inc | Fidelity National Title Group, Inc | FIS and Fidelity National Financial, Inc

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Title: CROSS-INDEMNITY AGREEMENT
Governing Law: New York     Date: 10/27/2006
Industry: Business Services     Sector: Services

CROSS-INDEMNITY AGREEMENT, Parties: fidelity national information services  inc , fidelity national title group  inc , fis and fidelity national financial  inc
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Exhibit 99.2

Execution Version

 

 

CROSS-INDEMNITY AGREEMENT

by and between

FIDELITY NATIONAL INFORMATION SERVICES, INC.

and

FIDELITY NATIONAL TITLE GROUP, INC.

Dated as of October 23, 2006

 

 

 


 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

ARTICLE 1. DEFINITIONS

 

 

1

 

 

 

 

 

 

 

 

 

 

 

 

Section 1.1.

 

General

 

 

1

 

 

 

Section 1.2.

 

Interpretation

 

 

4

 

 

 

 

 

 

 

 

 

 

ARTICLE 2. INDEMNIFICATION

 

 

5

 

 

 

 

 

 

 

 

 

 

 

 

Section 2.1.

 

Indemnification by FNT Group

 

 

5

 

 

 

Section 2.2.

 

Indemnification by FIS Group

 

 

5

 

 

 

Section 2.3.

 

Claim Procedure

 

 

6

 

 

 

Section 2.4.

 

Contribution

 

 

8

 

 

 

Section 2.5.

 

Limitations

 

 

8

 

 

 

 

 

 

 

 

 

 

ARTICLE 3. MISCELLANEOUS

 

 

9

 

 

 

 

 

 

 

 

 

 

 

 

Section 3.1.

 

Governing Law

 

 

9

 

 

 

Section 3.2.

 

Jurisdiction

 

 

9

 

 

 

Section 3.3.

 

Dispute Resolution

 

 

9

 

 

 

Section 3.4.

 

Access to Information

 

 

11

 

 

 

Section 3.5.

 

Notices

 

 

11

 

 

 

Section 3.6.

 

Binding Effect and Assignment

 

 

12

 

 

 

Section 3.7.

 

Severability

 

 

12

 

 

 

Section 3.8.

 

Entire Agreement

 

 

12

 

 

 

Section 3.9.

 

Counterparts

 

 

12

 

 

 

Section 3.10.

 

Expenses

 

 

12

 

 

 

Section 3.11.

 

Amendment

 

 

12

 

 

 

Section 3.12.

 

Waiver

 

 

13

 

 

 

Section 3.13.

 

Authority

 

 

13

 

 

 

Section 3.14.

 

Construction of Agreement

 

 

13

 

 

 

Section 3.15.

 

Termination

 

 

14

 

-i-

 


 

CROSS-INDEMNITY AGREEMENT

     This Cross-Indemnity Agreement (this “Agreement”) is entered into as of October 23, 2006, by and between Fidelity National Information Services, Inc. , a Georgia corporation (“FIS”), and Fidelity National Title Group, Inc. , a Delaware corporation (“FNT”).

RECITALS

     WHEREAS, FIS and Fidelity National Financial, Inc., a Delaware corporation (“FNF”), have entered into an Agreement and Plan of Merger, dated as of June 25, 2006, as amended and restated as of September 12, 2006 (the “Merger Agreement”), providing among other things for the merger of FNF with and into FIS (the “Merger”);

     WHEREAS, FNT and FNF have entered into a Securities Exchange and Distribution Agreement, dated as of June 25, 2006, as amended and restated as of September 12, 2006 (the “SEDA”), providing among other things for the transfer by FNF to FNT of all of the shares of capital stock of certain of FNF’s subsidiaries and certain other assets, certain related reorganization transactions and the distribution prior to the Effective Time (as defined in the Merger Agreement) of the Merger of all of the shares of capital stock of FNT held by FNF on a pro rata basis to the holders of the common stock of FNF (the “Spin-off”);

     WHEREAS, following the Spin-off, FNT will cease to be an Affiliate of FNF or FIS; and

     WHEREAS, in connection with the Spin-off, FNT and FIS desire to indemnify each other on the terms and subject to the conditions set forth below;

     NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE 1. DEFINITIONS

Section 1.1. General.

     As used in this Agreement, the following terms shall have the following meanings:

     “Action” means any demand, action, lawsuit, countersuit, arbitration, inquiry, proceeding or investigation by or before any Governmental Entity or any arbitration or mediation tribunal.

     “Affiliate” means, with respect to any specified Person, a Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified Person; provided , however , that, for purposes of this Agreement, no member of either Group shall be deemed to be an Affiliate of any member of the other Group.

 


 

As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or other interests, by contract or otherwise.

     “Agreement” has the meaning given in the Preamble.

     “Arbitrator” has the meaning set forth in Section 3.3(c).

     “Assumption Agreement” means that certain Assumption Agreement of even date herewith between FNT and FNF.

     “Business Day” means any day, other than a Saturday or Sunday, or a day on which banking institutions are authorized or required by law or regulation to close in Jacksonville, Florida or New York, New York.

     “Claim Notice” has the meaning set forth in Section 2.3(a).

     “Claimed Amount” has the meaning set forth in Section 2.3(a).

     “Controlling Party” has the meaning set forth in Section 2.3(d)(ii).

     “Dispute” has the meaning set forth in Section 3.3(a).

     “FIS” has the meaning set forth in the Preamble.

     “FIS Governmental Filing” means any report, schedule, form, statement or other document filed by any member of the FIS Group with any Governmental Entity, excluding Tax Returns (as defined in the Tax Disaffiliation Agreement).

     “FIS Group” means, collectively, FIS, the FIS Subsidiaries and each Person that is an Affiliate of FIS immediately after the Spin-off or thereafter becomes an Affiliate of FIS, but shall not include FNF or, prior to the closing of the Leasing Merger, Leasing or any Leasing Subsidiary.

     “FIS Indemnified Parties” has the meaning set forth in Section 2.1.

     “FIS Subsidiaries” means all direct and indirect Subsidiaries of FIS, including, after the closing of the Leasing Merger, Leasing and the Leasing Subsidiaries.

     “FNF” has the meaning given in the Recitals.

     “FNT” has the meaning given in the Preamble.

     “FNT Governmental Filing” means any report, schedule, form, statement or other document filed by any member of the FNT Group with any Governmental Entity, excluding Tax Returns (as defined in the Tax Disaffiliation Agreement).

     “FNT Group” means, collectively, FNT, the FNT Subsidiaries and each Person that is an Affiliate of FNT immediately after the Spin-off or thereafter becomes an Affiliate of FNT.

-2-


 

     “FNT Indemnified Parties” has the meaning set forth in Section 2.2.

     “FNT Subsidiaries” means all direct and indirect Subsidiaries of FNT.

     “GAAP” means U.S. generally accepted accounting principles, consistently applied.

     “Governmental Entity” means any court, tribunal, arbitrator or governmental or regulatory official, authority or agency, domestic or foreign.

     “Group” means either the FIS Group or the FNT Group, as the context requires.

     “Indemnifiable Losses” mean all losses, claims, demands, damages, liabilities, judgments, dues, penalties, assessments, fines (civil, criminal or administrative), obligations, liens, forfeitures, settlements, payments, costs, fees or expenses (including reasonable attorneys’ fees and expenses and any other expenses reasonably incurred in connection with investigating, prosecuting or defending an Action), of any nature or kind, including any reasonable out-of-pocket fees, costs or expenses of enforcing any indemnity hereunder; provided that “Indemnifiable Losses” shall not include (i) any Taxes, (ii) any indirect, special, consequential or punitive damages except for indirect, special, consequential or punitive damages paid or awarded to a third party in a Third-Party Claim, or (iii) any of the foregoing items to the extent caused by, resulting from or arising out of the gross negligence, willful misconduct or fraud of such Indemnitee or its Affiliates.

     “Indemnified Party” has the meaning set forth in Section 2.3(a).

     “Indemnifying Party” has the meaning set forth in Section 2.3(a).

     “Indemnitee” means a Person who or which may seek indemnification under this Agreement.

     “Leasing” means FNF Capital Leasing, Inc., a Delaware corporation.

     “Leasing Merger” means the merger of Leasing with and into FIS Capital Leasing, Inc. pursuant to the Leasing Merger Agreement.

     “Leasing Merger Agreement” means the Agreement and Plan of Merger, dated as of September 12, 2006, among Leasing, FIS and FIS Capital Leasing, Inc.

     “Merger” has the meaning set forth in the Recitals.

     “Merger Agreement” has the meaning set forth in the Recitals.

     “Non-controlling Party” has the meaning set forth in Section 2.3(d)(ii).

     “NYSE” means the New York Stock Exchange, Inc.

     “Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency, or political subdivision thereof.

-3-


 

     “Representatives” means, with respect to any Person, any of such Person’s directors, officers, employees, agents, consultants, advisors, accountants or attorneys.

     “SEDA” has the meaning set forth in the Recitals.

     “Spin-off” has the meaning set forth in the Recitals.

     “Steering Committee” has the meaning set forth in Section 3.3(a).

     “Subsidiary” means with respect to any specified Person, any corporation or other legal entity of which such Person controls or owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interest entitled to vote on the election of the members of the board of directors or similar governing body.

     “Tax” and “Taxes” each shall have the meaning provided in the Tax Disaffiliation Agreement entered into between FNF, FNT and FIS as of the date hereof.

     “Tax Disaffiliation Agreement” has the meaning provided in the Merger Agreement.

     “Third-Party Claim” has the meaning set forth in Section 2.3(d)(i).

     “Transferred Business” has the meaning provided in the SEDA.

Section 1.2. Interpretation.

     (a) For purposes of this Agreement (including all exhibits, schedules and amendments), unless the context otherwise requires, (i) all terms defined herein include the plural as well as the singular, and the masculine, feminine or neuter gender shall be deemed to include the others whenever the context so requires, (ii) all accounting terms used but not otherwise defined herein shall have the meanings given to them under GAAP and (iii) references to any Person include successors of such Person by consolidation and merger and transferees of all or substantially all its assets ( provided that references to FNF shall not be deemed to include FIS and provided , further , that such successor has duly assumed in writing all such Person’s obligations, if any, hereunder).

     (b) Words such as “herein,” “hereinafter,” “hereof,” “hereto,” “hereby” and “hereunder,” and words of like import refer to this Agreement, unless the context requires otherwise.

     (c) References herein to any agreement or other instrument shall, unless the context otherwise requires (or the definition thereof otherwise specifies), be deemed references to the same as it may from time to time be changed, amended or extended in accordance with its terms.

     (d) All references in this Agreement to times of the day shall be to the city of Jacksonville, Florida time.

-4-


 

ARTICLE 2. INDEMNIFICATION

Section 2.1. Indemnification by FNT Group.

     FNT will indemnify, defend and hold harmless each member of the FIS Group, each of their respective past, present and future Representatives, and each of their respective successors and assigns (collectively, the “FIS Indemnified Parties”) from and against any and all Indemnifiable Losses incurred or suffered by the FIS Indemnified Parties to the extent arising or resulting from the following, whether such Indemnifiable Losses arise or accrue prior to, on or following the date hereof or the date on which any member of the FNT Group became a member of the FNT Group:

     (a) the ownership or operation of the assets or properties, the operations or conduct of the business, and the employee retirement and benefit plans and financial statements, of any member of the FNT Group;

     (b) any breach by any member of the FNT Group of this Agreement, any other agreement to which any of them is a party, any of their respective certificates of incorporation or by-laws, or any law or regulation;

     (c) any untrue statement of, or omission to state, a material fact in any FIS Governmental Filing to the extent it was as a result of information about a member of the FNT Group;

     (d) any untrue statement of, or omission to state, a material fact in any FNT Governmental Filing, except to the extent the statement was about a member of the FIS Group;

     (e) any Action brought by a third party to the extent relating to the transactions contemplated by the SEDA (other than the transactions contemplated by the Merger Agreement or the Leasing Merger Agreement); and

     (f) the provision of services by or employment of any Representative with respect to the FNT Group (including the Transferred Business prior to the date it is transferred to FNT), and the termination of such services or employment.

Section 2.2. Indemnification by FIS Group .

     FIS will indemnify, defend and hold harmless each member of the FNT Group, each of their respective past, present and future Representatives, and each of their respective successors and assigns (collectively, the “FNT Indemnified Parties”) from and against any and all Indemnifiable Losses incurred or suffered by the FNT Indemnified Parties to the extent arising or resulting from the following, whether such Indemnifiable Losses arise or accrue prior to, on or following the date hereof or the date on which any member of the FIS Group became a member of the FIS Group:

     (a) the ownership or operation of the assets or properties, the operations or conduct of the business, and the employee retirement and benefit plans and financial statements, of any member of the FIS Group;

-5-


 

     (b) any breach by any member of the FIS Group of this Agreement, any other agreement to which any of them is a party, any of their respective certificates of incorporation or by-laws, or any law or regulation;

     (c) any untrue statement of, or omission to state, a material fact in any FNT Governmental Filing to the extent it was as a result of information about a member of the FIS Group;

     (d) any untrue statement of, or omission to state, a material fact in any FIS Governmental Filing, except to the extent the statement was about a member of the FNT Group;

     (e) any Action brought by a third party to the extent relating to the transactions contemplated by either (i) the Merger Agreement or the Leasing Merger Agreement (other than the transactions contemplated by the SEDA) or (ii) the Amended and Restated Stock Purchase Agreement between FIS, FNF and the purchasers named therein dated March 8, 2005; and

     (f) the provision of services by or employment of any Representative with respect to the FIS Group, and the termination of such services or employment.

Section 2.3. Claim Procedure .

     (a)  Claim Notice . A party that seeks indemnity under this Article 2 (an “Indemnified Party”) will give written notice (a “Claim Notice”) to the party from whom indemnification is sought (an “Indemnifying Party”), whether the Indemnifiable Losses sought arise from matters solely between the parties or from Third-Party Claims. The Claim Notice must contain (i) a description and, if known, estimated amount (the “Claimed Amount”) of any Indemnifiable Losses incurred or reasonably expected to be incurred by the Indemnified Party, (ii) a reasonable explanation of the basis for the Claim Notice to the extent of facts then known by the Indemnified Party, and (iii) a demand for payment of those Indemnifiable Losses. No delay or deficiency on the part of the Indemnified Party in so notifying the Indemnifying Party will relieve the Indemnifying Party of any liability or obligation hereunder except to the extent that any Indemnifiable Losses are caused by, arise out of or are increased by such failure.

     (b)  Response to Notice of Claim . Within 30 days after delivery of a Claim Notice, the Indemnifying Party will deliver to the Indemnified Party a written response in which the Indemn


 
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