CROSS-INDEMNITY
AGREEMENT
FIDELITY NATIONAL INFORMATION
SERVICES, INC.
FIDELITY NATIONAL TITLE GROUP,
INC.
Dated as of October 23,
2006
|
|
|
|
|
|
|
|
|
|
|
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
|
|
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”).
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:
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
|