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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 f
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